The Perils of Frivolous Lawsuits

I grew up in a rough neighborhood in the small town of St Marys, Pennsylvania. Our next-door neighbors, who I’ll call the Millers, worked tirelessly to make our lives miserable: Their older kids always bullied us younger Kreckels, and even the adults got in on the act, fighting about property lines. One day my mom opened a letter from an attorney representing the Millers. They were contesting the placement of our driveway. That day, Dad got home from work and said, “I’ve had enough. I’m going to call my buddy Danny Brahaney.”

Peter A. Kreckel, RPh

Danny was a childhood friend of my dad’s. He was a small-town lawyer from Johnsonburg, Pennsylvania, with a lot of common sense. A letter was sent out: Dad would drive a stake in the ground where he thought the property line was. Mr. Miller would drive a stake where he was sure the property line was. A survey on the property lines would be done and the loser would pay the surveyor. Simple enough. Dad never got another letter and the dispute was resolved. Put up or shut up—it’s what our legal system needs.

In 1796, our founding fathers made a critical error that still impacts virtually every aspect of our lives. At the time it made sense when they adopted the “American rule” versus the “English rule.” The basic difference between these rules is that in the English system, if you file a lawsuit and lose, you pay the defendant’s legal fees. The American rule dictates that each party in litigation covers their own attorney fees.

Our founding fathers’ rationale was that individuals should have unfettered access to justice without the deterrent of potential financial ruin from having to pay the opposing party’s legal fees. That made sense to a certain extent at the initial founding of the country. But never did our founding fathers foresee the mass media exposure that attorneys enjoy today. Today, people can sue for any reason whatsoever, can make any outlandish allegations, and can cause the defendant—who may be totally innocent— to incur potential financial ruin. Under the English rule, attorneys must be cautious when filing frivolous lawsuits because if they lose, the defendant has to pay legal fees for both parties.

Now think of how this applies to health care. When we see the plethora of TV commercials screaming, “Remember, there is no fee unless we get money for you!” what does someone have to lose? A big city lawyer does the work, prepares your case, takes half of your payout, and leaves you the rest.

One of my pharmacy colleagues used to work for a large metropolitan hospital. Her job was handling all the lawsuits in the obstetrics department. A good number of plaintiffs knew that the hospital would settle out of court for the sum of $10,000 rather than incur the legal fees to defend the suit. Under the English rule, these frivolous lawsuits would never have occurred, saving that hospital millions of dollars.

Today, everyone practices defensive medicine. Everyone focuses on excessive diagnostic tests—not just to rule out a lethal pulmonary embolism, but to prove they did everything under the sun to cover their backsides. Look at the lab work, look at the x-rays, look at the MRI, look at the CT scans. Did anyone look at the guy in the bed?

In 2015, an incarcerated individual in Nevada sued the state for $5500 for the emotional pain caused by the substitution of smooth peanut butter for his favorite chunky peanut butter.¹ What did he have to lose? What do health care patients on Medicaid have to lose when they call the toll-free number to sue a sodium-glucose cotransporter-2 (SGLT-2) manufacturer because of their out-of-control diabetes? People with diabetes had to have limbs amputated long before SGLT-2 inhibitors came on the market. So what if a patient has a hemoglobin A_1C of 9.2%—it must be the pills’ fault that they had to have their toe amputated.

Congress has intermittently considered alterations to the Federal Rules of Civil Procedure to address concerns surrounding the American rule. These proposals typically aim to strike a balance between maintaining broad access to the courts and reducing the filing of meritless lawsuits. We need this action now more than ever.

Trial lawyers are one of the biggest donors to the Congressional races, and it is doubtful that tort reform will ever occur in our nation. There is no shortage of attorney jokes, but my favorite is this: “99% of all lawyers give the rest a bad name.”

Peter A. Kreckel practices pharmacy part time in Lemont Furnace, Pennsylvania.

Reference

1. Kahane J. Wacky lawsuit Wednesday: convict vs prison aka chunky vs smooth. Kahane Law Office. March 25, 2015. Accessed September 10, 2024. https://kahanelaw.com/wacky-lawsuit-wednesday-convict-vs-prison-aka-chunky-vs-smooth