Juries

Serving on a jury is more than just a civic duty; it’s a crucial part of ensuring fairness in our judicial system. Jurors, however, often face complex cases, especially in areas like medical malpractice and hospital errors, where understanding the nuances is vital for a fair verdict.

Many believe our courts are clogged with frivolous medical malpractice lawsuits. Yet, this misconception overlooks the rigorous checks in place to prevent such cases from wasting judicial resources. Contingent-fee agreements, where lawyers are paid only if they win, naturally deter attorneys from taking weak cases due to the financial risk involved. Additionally, tools like summary judgment help dismiss baseless claims early, ensuring that mostly substantial cases, often involving significant medical negligence, proceed to trial.

Trial lawyers are key players in advancing consumer safety and public health. Despite facing numerous challenges and battling public misconceptions, their efforts lead to significant improvements in both medical practices and product safety, ultimately benefiting society at large.

Medical errors are alarmingly common and more deadly than many realize. A study in The BMJ labeled them as the third leading cause of death in the U.S., pointing to over 250,000 deaths annually. This stark statistic underlines the critical need for accountability and diligent legal scrutiny to safeguard patient safety.

Despite the high stakes, a culture of silence persists in many healthcare settings. Studies indicate that a mere 10% of medical errors are reported, a factor that hampers efforts to improve patient safety and prevent future incidents.

Medical malpractice cases are among the most challenging and costly to pursue. Due to their complexity and the high financial outlay required—often upwards of $150,000—only a fraction of reviewed cases go to court each year. These cases focus on instances where negligence is evident and substantial, contradicting the notion that most are frivolous. In fact, a small percentage of physicians are responsible for a disproportionately high number of malpractice claims.

Diagnostic mistakes lead the reasons for medical malpractice claims, with substantial research indicating that such errors cause tens of thousands of deaths annually. This highlights the importance of ongoing medical education and error prevention strategies in healthcare.

While they represent a small fraction of medical interactions, malpractice lawsuits play a crucial role in driving improvements in healthcare practices and enhancing patient safety. These cases provide valuable lessons that can lead to better diagnostic and treatment protocols.
One of the catch phrases jurors often hear is “frivolous lawsuits” – a lawsuit that has no legal basis or is so petty that the suit isn’t justified. Often, defense lawyers cite high profile cases, such as the McDonalds coffee case to try and show that the court system is “broken”, and “runaway juries” routinely award ridiculous verdicts in frivolous cases.

What jurors don’t know is that the legal system has three safety mechanisms in place to prevent, dismiss, and correct frivolous lawsuits. The first mechanism, the contingent-fee agreement prevents frivolous lawsuits from being filed in the first place.

Have you ever seen or heard an ad for an attorney who promises something like, “No cost to you unless we collect!”? Nearly every attorney that brings a lawsuit for a personal injury case does so under a contingent-fee agreement. While most people understand how the contingent- fee arrangement works, I’ll explain it in detail for those who do not.

Let’s say you or a loved one is a victim of malpractice and decide to hire an attorney. If you shop around, you’ll find that contingent-fee agreements vary from attorney to attorney. Generally, they will range from anywhere from 33.3% to 40% of the total settlement or judgment you receive. For simplicity, we’ll say you hire an attorney on a 40% contingent-fee agreement. If you were to receive $10,000.00, the attorney would get $4,000.00 in that case as her fee, in addition to being reimbursed for any expenses he or she incurred in building your case. These expenses include obvious things like court filing fees and office expenses, but there are some expenses in many cases that the public doesn’t know about: expert witness fees.

What is an expert witness fee? In most complicated cases – and virtually all medical malpractice cases – the plaintiff needs to hire expert witnesses to help prove his or her case.

In Ohio, you’re not even allowed to file a medical malpractice case without first having an affidavit under oath from an expert witness that says, in essence, the doctor/hospital in question committed malpractice.

All cases are gambles, no matter how strong the facts may be. When you hire an attorney on a contingent-fee basis, he’s gambling with his time and money. While attorneys are willing to gamble as to when, if, and how much they’ll get paid, expert witnesses generally are not.

Expert witnesses won’t wait until your case is over to get paid – they want to be paid up front, and it’s the attorney who must pay them out of his or her pocket. As you might surmise, expert witnesses aren’t cheap: they’re highly qualified professionals who generally have high hourly fees.

What kind of expert witnesses might be needed in a given case? Let’s take some real-life examples of experts and what they charge:

• Professional Engineers: If you’re suing a manufacturer because you got hurt by a product that you think was poorly designed, you’ll need a professional engineer. One engineer in Raleigh, North Carolina charges $325.00 per hour, with a 50% premium for deposition and court time. So, if that engineer spent ten hours reviewing a design, and five hours in court, that would cost your attorney almost $4,875.00. In a complicated design case, it’s not uncommon for several engineers to spend fifty or more hours evaluating the product.
• Doctors: If you have a medical malpractice case, or any case where the extent of your injuries is called into question, you’ll need to hire a doctor as an expert witness. Doctors, as you might guess, are expensive. Plan on having your attorney spend around $400.00 per hour, possibly twice that much for a well- regarded specialist. In a complicated medical case, you may need three or more doctors, each of whom may have to spend ten to twenty hours – an out-of-pocket cost to your lawyer of $40,000.00 or more.
• Nurses: You’ll probably need a nurse in any case where you need a doctor. While they’re not as expensive as doctors, they’ll still be around $275.00 an hour. Just like doctors, they’ll also probably have to spend ten to twenty hours on a case. That’s $5500.00 or more from your lawyer’s checking account.

Surprisingly, finding expert witnesses isn’t easy. Often, a lawyer will have to “shop around” for experts. That means your lawyer will spend time finding experts with the right qualifications for your case. Then, he or she would gather all the pertinent materials and send them to an expert for review. Sometimes, the expert will review the records and say that they’re not interested in the case. Or perhaps they’ll review the records and not find anything helpful to your case. Either way, the expert will still have to be paid, and it’s your lawyer who will have to pay them. It’s not uncommon to go through two or three experts, and several thousand dollars, before the “right” expert is found. Of course, it’s also not uncommon for a lawyer to think his or her client has a great case, only to be told by several experts that the case has little or no merit. In such an instance, that lawyer will be out-of-pocket thousands of dollars, and the client will owe nothing to the attorney – thanks to the contingent-fee agreement.

Now, if you were a lawyer with a contingent-fee agreement, would you be willing to spend thousands of your own dollars and hundreds of hours on a case you’re not confident you can win? If your answer is “no” to that question, then you’ve just seen how contingent-fee agreements prevent frivolous lawsuits from being filed.

While contingent-fee agreements prevent frivolous lawsuits, they also do something even more important: They provide access to the courts for everyone. In general, a lawyer’s hourly fee will be anywhere from $100 to $300 an hour. Not many people can afford to pay that kind of money to an attorney for more than a few hours. If you were to have to pay an hourly fee to an attorney to bring a complicated injury case to trial, you might have to spend $50,000 on the attorney. If contingent-fee agreements were abolished, two things would happen: Only the rich would be able to file lawsuits, and attorneys would be far more willing to file a lawsuit that doesn’t have merit; when you’re paid by the hour, it doesn’t matter if you win or lose.

No case is “easy”, and in general, the more complicated the case, the harder it is to win. Contingent-fee agreements are what attract lawyers to the complicated cases. Contingent-fee agreements are what drive lawyers to take those cases to trial, instead of settling for a fraction of what the case is really worth. Contingent-fee agreements allow the poorest of the poor to hold corporate institutions like hospital systems accountable for their actions in court of law.

So, what happens if an inept lawyer decides to file a frivolous lawsuit? The second safety mechanism, the Summary Judgment, would be used to dismiss the suit.

Some say that the courts are overwhelmed with “frivolous lawsuits” – lawsuits that have no legal basis or are so petty as to not be worth the time of the court system. They say that to protect the justice system, we need to make it harder for individuals to file lawsuits.

But what if instead of putting barriers up that could prevent legitimate lawsuits from being filed, there was a tool that could quickly and easily dismiss frivolous lawsuits? What if this tool not only dismissed frivolous lawsuits, but could also be used to force the plaintiffs in frivolous lawsuits to pay the attorney fees of the defendant? This tool not only exists but has been in use in America for nearly 100 years; it’s called the Summary Judgment.

The purpose of the summary judgment is to determine whether there is a genuine need for trial. When a party files a motion for summary judgment, they’re telling the court that there is no need for trial because the facts and law applicable to the case would prevent the other side from winning.

I’ll use a fictitious car wreck as an example of how a summary judgment would dispose of a frivolous lawsuit:

• Mr. Smith runs a red light and slams into Mr. Jones. Mr. Smith claims the light was green, but two witnesses say the light was red. Mr. Smith is given a citation from a police officer for running a red light. Mr. Smith decides to sue Mr. Jones for mental anguish.
• Mr. Jones hires a lawyer. Mr. Jones’ lawyer spends a few hours drafting a motion for summary judgment. At the end of the motion, Mr. Jones’ lawyer requests he be awarded attorney’s fees from Mr. Smith because the lawsuit is frivolous.
• The lawyer for Mr. Jones files his motion for summary judgment, and includes with it pictures of the accident scene, affidavits from the witnesses, an affidavit from the police officer, an affidavit from Mr. Jones, and a copy of the police report. All the affidavits and the police report say that Mr. Smith ran a red light.

In such a case, the judge would most likely grant the summary judgment, and Mr. Smith’s lawsuit would be dismissed. The judge could also decide to order Mr. Smith to pay for Mr. Jones’ attorney’s fees. In the end, Mr. Jones wouldn’t be out any money, and Mr. Smith would have had his day in court.

The requirements for summary judgment vary from state to state, but in Ohio, summary judgment is a legal procedure used to resolve a case without a full trial when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. This procedure allows the court to decide the case based on the facts that are not disputed by either party. In general, you need to show the court two things:

1. That the facts clearly support your side. In Ohio, for example, you must show that reasonable minds cannot possibly come to different conclusions about what the evidence shows. If reasonable and fair-minded people could come to different conclusions about the facts of the case, then summary judgment shouldn’t be granted.
2. That the law is clearly on your side. A common use of the summary judgment is to dispose of lawsuits where the statute of limitations has passed.

Summary judgments have disposed of frivolous lawsuits for decades. They allow a defendant in a frivolous lawsuit to get out of the case quickly and without the expense of a full- fledged trial. Often, the defendants are even awarded their attorney’s fees for preparation of the motion for summary judgment.

The bottom line is that because of the summary judgment, few if any “frivolous lawsuits” ever make it to trial. It could even be argued that any case that makes it past summary judgment can’t be a frivolous lawsuit because a Judge – not a “runaway jury” – decided that the case had enough merit to present to a jury.

The next time someone tries to persuade you that we need more barriers to filing lawsuits, ask them why they don’t think the summary judgment is getting the job done. Our justice system is a system of checks and balances.

Before someone can even bring a case, they must first convince an attorney that their case is worth gambling time and money on.

The contingent-fee agreement weeds out countless cases that have no merit. Once an attorney accepts the case, a judge will most likely scrutinize the facts and law applicable to the case through a summary judgment.

If the judge decides that the case has merit, then the case will be presented to an impartial jury.

If a jury is convinced that the plaintiff has proven his or her case, the jury will then rule in favor of the plaintiff, and award compensation for the plaintiff’s injuries. The judge has an opportunity to modify, reduce, or set aside the jury’s verdict. Then, the defendant has an opportunity to appeal his case to higher courts.

The burden of proof in any case is always on the plaintiff; the deck is stacked in favor of the defendants in both civil and criminal cases.