Fraudulent claims uncommon
As for fraudulent medical liability claims, legal experts say they’re rare. J. Richard Moore, JD, an Indianapolis-based medical liability defense attorney, said he’s never personally encountered a medical malpractice claim in which he believed a plaintiff caused an injury or an illness and attempted to blame it on a physician.
However, Mr. Moore has defended many claims in which the illness or condition the plaintiff claimed was caused or was made worse through medical negligence was actually a preexisting condition or a preexisting condition that worsened and was not related to any medical negligence, Mr. Moore said.
“Although I have often felt in such cases that the plaintiff really knew that the condition was not affected by any alleged medical negligence, I would not put that in the ‘fraudulent claim’ category because it can be very difficult to establish a person’s subjective state of mind,” he said. “Usually in those cases, the plaintiff just denies memory of previous medical records or claims that the previous doctor who treated him or her for the same condition ‘got it wrong.’ In those cases, it is generally left to the jury whether to believe the plaintiff or not.”
Mr. Stinson also says he has not come across a truly fraudulent medical liability case. He noted that such a claim might be similar to a person falsely claiming a soft-tissue injury following an alleged slip-and-fall accident.
“Clearly, a fraudulent claim could be viewed as riskier from the plaintiff’s perspective because they could face criminal prosecution for insurance fraud, whereas if a claim is merely frivolous, they probably only run the risk of court-issued fine, if even that. That may be why we don’t often see fraudulent MPL claims.”
Ways to prevent or fight frivolous lawsuits
Since Dr. Stawicki’s legal nightmare as a resident, rules have tightened in Pennsylvania, and it is now more difficult to file frivolous claims, he said.
Pennsylvania is one of at least 28 states that require a certificate of merit in order for a medical liability claim to move forward. The provisions generally state that an appropriately licensed professional must supply a written statement attesting that the care the patient received failed to meet acceptable professional standards and that such conduct was a cause in the alleged harm.
“There is now a much greater burden of proof regarding what can proceed,” Dr. Stawicki said. “I’ve been involved in a couple cases that did not proceed because there was no certificate of merit.”
Although these reforms may help, not all merit rules are created equal. Some states require that the expert who signs the affidavit be knowledgeable in the relevant issues involved in the action. Other states have looser requirements. In one of the cases featured in Medical Justice’s Most Frivolous Lawsuit Contest, a podiatrist signed a supporting declaration for a claim related to obstetric care.
For physicians facing a frivolous claim, fighting it out in court depends on a number of factors. Without a consent-to-settle clause in the contract, an insurer can make the final decision on whether to defend or settle a case.
Resolving a malpractice claim is generally a business decision for the insurer, Dr. Studdert said.
“When the claim is for a relatively low amount of money, the costs of moving forward to defend that claim may be much more than the costs of simply settling it would be,” he said. “On the other hand, liability insurers and their lawyers are repeat players here, as are the plaintiffs’ attorneys. They don’t want to incentivize plaintiffs’ attorneys to bring questionable claims, and if they settle quickly, that may do so.”
Mr. Stinson, of the MPL Association, said a truly frivolous claim – one with no legal basis – is highly unlikely to be settled, “especially by MPL Association members who go beyond having a purely financial interest in their insureds to also focus on their professional reputation/integrity.” MPL Association members insure nearly 2 million health care professionals globally, including 2,500 hospitals and more than two-thirds of America’s physicians who are in private practice.
Physicians should make sure they know what is and what is not included in their policy, Dr. Segal said.
“The broker should sit down with the doctor, ideally before initial purchase or renewal, and explain in clear terms what the carrier’s obligations are and what the physician’s obligations are,” he said. “Know what type of protection is being purchased and what conditions might trigger a surprising and unhappy outcome.”