Thoughts on the Frivolous Lawsuit Industry

This took me awhile to post after writing it because I saved it in an email and then (for reasons I won't get into in this article) couldn't open it. Hopefully I've formatted it right.
The article is basically my opinion on what should be considered a frivolous lawsuit, and how those should be dealt with. I do not believe that the things I have written here would completely solve the problem in question, especially since, for all of this to work, common sense would have to prevail and I have seen common sense in the courts only three times in my entire life, two of which were not related to lawsuits. However, the issues I bring up in this article, like the issues in our current medical system, can't be indefinitely ignored. Otherwise, our out of control legal system will bankrupt our nation before medical expenses ever get a chance to do so.

Last year I was in a barely-noticeable bumper-thumper at a stop light in Kettering, Ohio. The car I was riding in was stopped at an intersection at which two lanes of traffic split into three; one which had to go straight, and two which turned right. The right turn lanes curved slightly around the corner. We were stopped in the "middle" lane (the right turn lane which was on the left instead of the far right.) Another driver was stopped in the straight lane, just behind our left rear bumper. He was listening to driving directions on his GPS, which told him to take a right turn. Not thinking, he took his foot off the gas and bumped our rear at about 5MPH. Looking around, I saw three other drivers raise cell phones to their faces and begin dialing.
The driver of the car I was in got out and looked at his bumper. Even at that low speed, there was damage, mainly due to the make of his car. As more people drove by talking on cell phones, both drivers decided it would be a wise move for them to call the police. I don't know if it's just in Ohio, but even in a minor accident like that, the law says you are required to report it to the police. If you don't, you can be prosecuted for leaving the scene of an accident. Also, once you've left, the other driver can say anything and it will stick, because you left so now you can't be believed.
The upshot is that a police report was filed, but there were no insurance claims because my buddy could fix his car himself, and no one was injured. The police report accurately reflected the details of the accident; the low speed of impact, low damage, and lack of injuries.
That is why I was so disgusted when I began receiving phone calls the next day. I'd had to give my cell phone number for the police report, because I don't have a land line. (Can't afford one.) Since I take my CP to work with me in case my son's school calls, and since I work first shift, my phone kept going off in my pocket at work in front of my boss. I specialize my ring tones so that I know who is calling, and that way I don't have to answer at work when I know it isn't the school. One caller, however, kept re-dialing until I finally answered. That was the first lawyer to get hold of me. He offered to take my case.
Case? What case? I was confused. I wasn't suing anyone, and hadn't asked anyone for any legal help in years. What the heck could this guy be talking about? I told him he must have the wrong number, but he pressed on, asking me to confirm that I was myself. On receiving that confirmation, he insisted that I had a case against either the driver of the at-fault car or the driver of the car I was in at the time of the accident, and I could get "at least $10,000.00 for my "injuries."
Injuries? I wasn't even sure we'd actually been hit until my buddy got out of the car and confirmed it. What kind of bullshit artist was this guy? I politely told him that I'd sustained no injuries, that it had just been a bumper-thumper, no harm-no foul, and I wasn't interested in suing anyone. He grunted rudely into the phone and hung up on me.That was the first of over 50 calls, all during prime time hours, to my cell phone over the next two weeks. I got calls from lawyers offices from all over the Dayton Metro area. They were rude, pushy, and sometimes even threatening. One firm's rep told me that if I didn't hire them, they'd represent the other driver against me. When I pointed out that I was the passenger in the not-at-fault car, this caller hung up on me, too. I heard expletives before the phone hit the cradle.
If I'd had any trust in lawyers, these guys would have killed it.

More surprising were the calls from Chiropractor's offices. I was being solicited by Chiropractors for whiplash treatment based on an accident report that said I wasn't injured! I haven't gone to a Chiropractor's office without a GP's recommendation in nearly 20 years. Several callers from Chiropractor's offices told me it would "help my lawsuit" if I got into treatment right away. All of them insisted that I must be injured, and that you can't be rear-ended without suffering whiplash. I'd have been fooled, except for one tiny fact: I've had whiplash before. In 1989, I nearly killed myself on a skateboard and really put my neck out. I got rear-ended by a Buick in 1989 (20MPH), taxi cab in 1990 (about 40MPH), a tow truck for semis in 1996 (40MPH according to the driver), a Buick in 1997 (about 30MPH), and a Cadillac in 2004 (25MPH). I know exactly what whiplash feels like, when it starts to hit me, and how my body recovers from it. I know that most of the time, in a minor accident with a minor whiplash injury, I'm not even going to see a doctor - Ibuprofen, rest, and fluids are what I need unless, as in the case of the tow truck, I get thrown all over the seat like a ragdoll and hear and feel my neck pop out of place, or in the case of the Buick in 1997, I hit my head on the dash (ouch!).
I knew that from this last accident, I was definitely and unquestionably not injured. After those calls, I've lost a lot of trust in the Chiropractic care field.

I checked with my buddy... he'd gotten calls, but not nearly as many as I had. I think, based on what some of them said to him about needing a good defense if his passenger sued, and what some of them said to me about "city traffic" and "city drivers," that there were two reasons why I was targeted:
One, I was a passenger, not a driver. Lawyers told me that I could collect from both drivers, even if my injuries were minor. All of them promised to get me "at least" ten grand. Ten thousand dollars just for being there. What a load of crap!
Two, they noticed my telephone area code. My parents live in a rural area, and the CP I use is in their business plan, costing $10.00/month. I couldn't turn that down. However, it makes it look (every time I give out my number) as if I am from that area instead of the Dayton Metro area. These "sophisticated" big-city lawyers thought they had a country bumpkin on their hands who didn't know Dayton traffic, had never been in an accident, and would be a prime candidate for them to use to fleece the poor driver who hit us.
I was really mad. These vultures descended the roadkill they decided I was, with no intentions but to take advantage of a very minor inconvenience in order to reap profits for themselves. Most likely, the insurance company for the other driver would have settled out of court. The lawyers would claim 30% of the settlement, and the Chiropractors would get the rest for the bills I'd rack up seeing them. I'd most likely be "cured" right when my money and insurance ran out. I started answering unknown callers who mispronounced my name (There's a Whalen blvd in the area, so they all mispronounced Wallen with a long a) with "So, which sheister's office are you with? Are you going to reimburse me for the minutes you are wasting on my cell phone, calling me during morning hours?" I told one guy I'd consider hiring him if he gave me the settlement "up front" and guaranteed me that I wouldn't have to pay him back if we lost. He cussed me out. Some of these Southern Ohio lawyers are real professionals.

Vultures. Amulence Chasers. Liars. Thieves.
This is only one example of why I refer to these people as the Frivolous Lawsuit industry. There is no honor, no intent to help the individual, no consideration for justice and the law among them. Their profession has become a client hunt rather than an effort to protect the public. This segment of the legal profession is like a mass of people all acting upon symptoms of Munchhausen's By Proxy, having to "injure" so that they can "help," thereby gaining profit and (among their peers) acclaim.

They hunt clients not only in the area of auto accidents, but also in the workplace, in the medical arena (malpractice), and in the public sector. We laugh at some of the silly warnings which we find on appliances (do not operate without door - my microwave oven), toys (this is not real food. do not eat. - on my neices' toy plastic "groceries") equipment and tools (do not use while sleeping - my hair dryer...
not to be touching any surfaces - my bread making machine). It's funny but sad that a manufacturer of small screwdrivers had to warn users not to insert into their penises. We laugh at the stupidity that lead to someone doing that in the first place, and we never think about the fact that those ridiculous warnings are there because someone did the stupid thing against which the manufacturer is warning, and then sued when they got hurt because of their own stupidity.

Why is it the manufacturer's responsibility to think of every stupid, idiotic manner in which the general public might misuse their products? Is it really someone else's fault if your blender slices your fingers when you stick them into the path of the whirling, sharp blades? How did we get to the point where we can hold the manufacturer responsible for the misuse of a product when a person knowingly and willfully made the decision to do so? How did we decide that it's ok to for anyone to hold others responsible for unwanted consequences of his or her own actions? Most people would agree that if a man beats his neighbor with a 2x4 piece of lumber from Lowes, the neighbor should not sue Lowes, yet there has been discussion related to injured auto accident victims suing car manufacturers.
One of the biggest examples of frivolous lawsuit nonsense is tobacco suits. Since 1966, packages of cigarettes have borne Surgeon General's warnings. No one who began smoking after 1966 can honestly claim that they didn't know that smoking was harmful to them. Regardless of all arguments related to what is in cigarettes, how addictive they are, what the manufacturers did or did not know about their unhealthy nature, etc. the bottom line is this: No middle-aged or young consumer can reasonably claim to not know smoking was unhealthy. By the time I was in school, they were teaching us the dangers of smoking as part of our elementary school health class curriculum. I got to see pictures of lung and mouth tumors in the fourth grade. Letting people my age sue tobacco manufacturers is like letting suicidal jumpers sue bridge makers.

Medical Malpractice lawsuits are another huge cesspool of legal stupidity. While it is true that on some occasions, doctors do harm patients (I can cite a few examples from my own family) there are many, many examples where people have sued and won big settlements form doctors who did nothing wrong. There are even cases in which settlements have been paid over genetic birth defects, despite the fact that medical treatment had nothing to do with whether or not the disability occurred. Patients have sued and won after incurring injuries or worsening their own medical conditions by not following doctors' instructions. The cost of malpractice insurance has skyrocket over the last few decades as companies try to deal with the fact that they have no way of determining lawsuit risk factors other than by field. Some specialists pay tens of thousands in yearly fees. Some facilities pay hundreds of thousands in yearly fees. Those costs get passed on to the consumer, be it another insurance company, a self-paying patient, or the medicaid and medicare systems. If our country goes for some kind of socialized medicine (an idea currently under discussion at the national level) this expense will be passed on to all taxpayers.

Some common sense needs to be injected into the legal system. In the past, settlement limits have been applied in different areas. The idea sounds good, but it fails in two key areas.
First, it doesn't eliminate frivolous lawsuits. It just makes each one less expensive than it might have been without limits. Lawyers who specialize in litigation, and who want to make the same profits as before limits existed, will simply find more clients and file more suits, often delving into even more ridiculous areas of liability in order to do so. The result will not be a reduction in the cost of these suits, but rather an increase in numbers, inadvertently increasing the cost in terms of legal defense and hours spent in court.
Second, this hurts actual victims with legitimate suits. In some circumstances, people are injured by others in ways that cause them to need medical care which can be extremely expensive, as well as adjustments to their living and work environments to accommodate disabilities resulting from those injuries. This can happen with injuries in car accidents, from a doctor's mistake, accidents at work, or any other area where someone can get hurt. It is wrong to limit the responsibility of the party which caused such an injury in cases where the case for liability is legitimate. It would be better to find a way to prevent illegitimate cases than to punish real victims for the actions of others.

Because of this, I believe that instead of limiting awards, laws related to this area should be geared more toward criminalizing frivolous lawsuits and protecting individuals against the money-hungry vultures who use them to make their living. The following are my thoughts on some ways that the system can be improved. Most of these ideas are related to lawsuits about which I have read.

A lawsuit should be designated as frivolous if it meets any of the following conditions:

1) It can be conclusively proved that the defendant(s) in the lawsuit neither committed any act which directly caused, nor neglected to do something he/she/they were legally required to do or could be reasonably expected to do in order to prevent, the injury or other situation/circumstances which are the basis for the plaintiff's complaint.

.      .      In the cases of medical malpractice, the following conditions mean the lawsuit meets the above condition and therefore is  considered a frivolous lawsuit:

.      .      A) The patient's complaint  occurred because the patient failed to follow instructions given by the care giver during any point in the care giver's treatment of the patient, or because the patient failed to follow precautionary instructions provided with medication.

.      .      B) The patient's complaint occurred because of a drug interaction between a prescription drug and an illegal substance the patient was using.

.      .      C) The patient's complaint occurred because of a drug interaction between a prescription drug and an over-the-counter drug which the patient failed to inform his/her care giver that he/she was using or used against the care giver's advice.

.      .      D) The patient's complaint occurred because of the patient's use of any drug in a manner which is contrary to instructions given to the patient by the defendant for the patient's use of that drug.

.      .      E) The patient's complaint occurred strictly because of either the actions or neglect committed by a different care giver than the defendant, even if the other care giver works at the same facility or is otherwise associated with the defendant. Such a lawsuit should be directed instead at only the responsible party.

.      .      F) The patient's complaint occurred due to an accident which was the result of combative behavior exhibited by the patient during treatment by the defendant, or in the case of a lawsuit against a facility, treatment at the facility.

.      .      G) The patient's complaint occurred as the result of an accident which occurred because the patient was intoxicated by a substance not prescribed or provided by the care giver, even if the complaint involves complications created by that accident in a condition for which the care giver has been treating the patient.

.      .      H) The patient's complaint occurred as the result of a suicide attempt by the patient because of a mental health condition which existed in the patient prior to the patient's medical relationship with the care giver.

.      .      I) The patient's complaint occurred as the result of a suicide attempt by the patient in response to pain or other suffering from a condition which the care giver was treating when all of the following conditions are met:

.      .      .      1) the existence of the pain and/or other suffering in question was consistent with the condition in question.

.      .      .      2) the care giver had taken reasonably expected steps, consistent with treatment for the condition in question, to alleviate the pain and suffering in question

.      .      .      3) the care giver had provided counseling regarding any other steps available which may alleviate the pain and suffering in question, and the normally expected results of those steps

.      .      .      4) the pain and suffering was at a normal, expected level for a symptom of the existing condition and had not been increased by improper or unconventional treatment by the care giver

.      .      .      5) the care giver had not failed to properly monitor the patient's condition in a manner consistent with traditionally expected within the care giver-patient relationship in question.

.      .      J) The patient's complaint amounts to dissatisfaction with a result of treatment when all of the following conditions are met:

.      .      .      1) the treatment used was either the only or the best option available for use in cases of the type of ailment for which it was used in the patient's case.

.      .      .      2) the result in question is consistent with the expected/normal result for the use of the treatment for the patient's condition OR was determined ahead by the care giver and the patient or patient's consenting representative to be the most expected (not best hoped for) result which could be achieved for use of this treatment in this case, OR was a side-effect of the treatment which the patient or patient's consenting representative was told to consider before consenting to the treatment.

.      .      .      3) counseling was provided prior to treatment, making the patient or patient's consenting representative aware  possible side-effects and other results of the treatment, any other options which might be available, and any expected results of choosing either another treatment or choosing not to treat..

.      .      .      4) the care giver was licensed to perform the treatment given, at the time the treatment was given.


.      .      K) The patient's complaint occurred due to factors which were completely beyond the care giver's control, and which the care giver could not predict or had predicted before receiving the patient's or consenting representative's consent to treat.

.      .      L) The patient's complaint places blame on the defendant for the existence of a disorder in the patient which is actually a genetic disorder or is a birth defect caused by conventionally unadvised behavior by the mother during gestation (such as fetal alcohol syndrome), or for the existence of a disorder which existed prior to treatment with the defendant.

2) The plaintiff's complaint is based on an accident which occurred while the plaintiff was illegally trespassing on the defendant's property.

3) The plaintiff's complaint is based on an accident which occurred while the plaintiff was using personal property which the plaintiff had stolen from the defendant.

.      .      In the case of medical malpractice, 2 and 3 would include cases in which a plaintiff's complaint is based on the result of his or her having trespassed at the defendant's home or place of practice and then damaged him/herself using any equipment or substance contained therein, OR as a result of his or her having stolen any equipment or substance contained therein, even if the equipment or substance could be later determined to have been in any way treated in a negligent manner by the defendant.

4) The plaintiff's complaint is based on an accident which occurred while the plaintiff was committing a violent crime against the defendant.

5) The plaintiff's complaint is based on an injury incurred due to any act the defendant committed in self defense against the plaintiff  during any violent act committed against the defendant by the plaintiff.

6) The plaintiff is suing for any level parental rights to a child he fathered by committing forcible rape against the child's mother, for which he has been convicted. The same stipulation should be applied to pedophiles who have fathered children with underage girls or boys when the age difference or other factors result in prosecution and rape conviction, with exceptions made only in cases where both parents were underage but neither was mentally incompetent (disabled, not drunk) at the time of the relationship. Even if a judge does allow such a suit to go through, any attorney involved on the plaintiff's side should be liable (in the case of a loss) for legal malpractice as described below.


.      .      When a lawsuit is filed, the plaintiff should have the right to request a hearing to determine whether or not the suit is frivolous. This hearing should be of the same nature as the type of hearing being used in the original suit. If the suit is to be heard just by a judge, then the determination as to whether or not the suit is frivolous should also be made by a judge. If the suit is to be heard by a jury, then the determination should also be made by a jury.
.      .      In all cases which are determined by a judge or jury to be defined as frivolous lawsuits, the plaintiff's attorney must be held responsible for all of the defendant's legal expenses and court costs, as well as any lost wages due to work absences while the defendant was in the courtroom during activity regarding the case. Further, once a lawsuit is legally defined as frivolous, all involved defendants should be granted the legal right to do the following with regards to that specific case:

1) Insist that prosecution take place for any illegal acts committed in the process of the suit by any and all plaintiffs and their legal representatives.

2) File countersuit against any and all plaintiffs for having wrongfully dragged them into court.

3) File Legal Malpractice lawsuits against the plaintiffs' attorney(s) who actively participated in the frivolous case, with active participation defined as having done any  of the following:
.      -appeared in court on behalf of the plaintiff in the frivolous suit
.      -filed any motion or other paperwork on behalf of the plaintiff as an attorney involved with the frivolous suit
.      -contacted the defendant(s) or defendants' attorney(s) as a representative of the plaintiff with regards to the frivolous case
.      Attorneys who are members of a firm should not be held legally responsible for cases taken on by their partners unless the firm's policy requires that partners approve each others' involvement in suits.

.      .      Legal Malpractice by an attorney in the form of filing frivolous lawsuits should be a prosecutable offense with penalties which range from fines to jail time and loss of license to practice law, depending on the severity and frequency of the attorney's infractions. Intent to violate or lack thereof should be a factor in determining the level of discipline involved. There should not be jail time or license loss for first time offenders, or for minor offenders. Penalty for offenses in which it can be determined that the nature of the case made it difficult to determine whether or not the case had merit should be minimal or possibly even suspended, depending on the case. Repeat  offenders should see increased penalties with each conviction, and habitual offenders should be stopped by loss of license. Obvious major violations should earn the offender jail time.

.      .      The plaintiff should also be able to file a Legal Malpractice lawsuit against his/her own attorney if the plaintiff can prove that he or she filed the lawsuit under the attorney's advisement after having been sought out by any means and solicited by the attorney for the purpose of said filing. Plaintiffs should not be able to sue their attorneys if they insisted on filing suit against the attorney's advice, or if they shopped, going through several attorney refusals before finding an attorney who was willing to take the case in question.

.      .      In order to prevent the legal profession from avoiding responsibility for their behavior by all refusing to take legal malpractice cases, availability of legal malpractice representation for plaintiffs in legal malpractice cases should be enforced. If the legal community cannot otherwise make available attorneys who will take legal malpractice cases, then the law should establish a system wherein all attorneys who specialize in lawsuits, especially those who specialize in malpractice suits, must accept a percentage of their cases through the court as is done with public defenders, with that percentage being representative of plaintiffs in legal malpractice cases who cannot otherwise find an attorney.

.      .      In legal malpractice cases where the case is found in favor of the plaintiff, the malpractice defendant must be held responsible for all of the plaintiff's attorney fees and court costs.

.      .      In no way should limitations be placed on the size of monetary awards as a way of controlling frivolous lawsuits. Even $5.00 is too much to award a plaintiff if the defendant is not actually at fault. At the same time, limitations punish those plaintiffs who do have legitimate cases. Sometimes damages are much bigger than one person's injuries or suffering. Expenses can go way beyond medical costs and lost wages. Limitations fail to take into account the havoc one person's carelessness can wreak upon another's life.
.      .      I believe that the above way of handling wrongful litigation is a much better system for dealing with the out-of-control, greedy frivolous lawsuit industry and returning honor back to the legal profession without squashing the little guy's ability to obtain justice through the court system. Though these ideas may not work perfectly, I think they will work much better than the way things are being handled now.