On November 8, 1989, Norma Levitt underwent hip-replacement surgery at Hillcrest Medical Center in Tulsa, Oklahoma.  During the procedure, a nurse gave Levitt a unit of her own blood which had been warmed in a microwave oven located in the employee lounge.  Shortly after receiving this blood, Ms. Levitt passed away on the operating table. 

                Ms. Levitt's estate retained the law firm of Wilkinson & Monhehan to pursue a medical malpractice claim against the medical center and its physicians.  They asserted that the heating of the blood in the microwave resulted in gross hemolysis of the blood, which in turn released a large amount of potassium.  This release of excessive potassium into the body is often fatal.  The medical center asserted that Levitt died from a blood clot rather than from the consequences of hemolyzed blood. 

                Initially, the family sued only the medical center.  Wilkinson later amended the family's pleading to add several additional corporations and approximately twenty other anesthesiologists and pathologists as defendants.

                After more than three years of discovery, a three-week trial was conducted.  After seventeen days of trial, the plaintiff rested their case and the trial court dismissed charges against nine of the individual defendants and six of the corporate defendants.  The jury found in favor of all remaining defendants. 

                Following the conclusion of the trial, the defendants brought a Motion for Sanctions against the plaintiff's attorney, claiming that he had filed a frivolous lawsuit against those individuals who were dismissed during the course of the trial.  The defendants contended that if Wilkinson had exercised reasonable diligence prior to bringing the suit, and during the course of discovery, he would have realized that this was not a viable claim and he should not have brought the case against these defendants.

                After a two-day hearing, the trial court found that many of the claims had indeed been frivolous in nature and ordered sanctions in the amount of $200,000 to be paid by the plaintiff's attorney.  The plaintiff's attorney appealed the decision to the Oklahoma Supreme Court.

                The Oklahoma Supreme Court ruled that an attorney has an obligation both to investigate the viability of a claim before filing a lawsuit and, if during the course of the lawsuit the attorney determines that the claim is not legitimate, the claim must be dismissed.  In the event that attorneys fail to do either of these requirements, it is proper for a trial court to issue sanctions against them.

                At the hearing for sanctions, the anesthesiologist had argued that because there was no doctor-patient relationship, they were improperly brought into the suit.  However, the Oklahoma Supreme Court disagreed and wrote, "We note that the theory of allowing the existence of an unreasonably dangerous condition is a common theory in premises liability cases and in general tort cases.  While we have not found it to be a theory used often in the reported medical negligence cases, that is not to say advancement of this theory is totally without merit in such a novel context."  For this reason, the Supreme Court found that the award of sanctions against the plaintiff for bringing the anesthesiologist into the claim was an abuse of discretion by the trial court and that sanctions should not have been implemented.   

                Finally, the court considered the claims against the pathologists in the case.  The Supreme Court found that no one who considered himself an expert in pathology was willing to testify that the pathologist's conduct had fallen below accepted standards of medical practice.  Therefore, the Supreme Court held that the award of sanctions as to the pathologist was appropriate due to the failure of the plaintiff to dismiss the action where he realized he did not have an expert.

                Many health care professionals hold the opinion that medical malpractice lawsuits which are filed are often frivolous.  Indeed, in the mid-1970's and 1980's, legislation was passed in many states to screen out frivolous lawsuits before the expensive and time-consuming discovery process was commenced.  For example, in Massachusetts, a medical malpractice tribunal screening panel reviews every medical malpractice case that is filed to determine whether or not there is a reasonable basis upon which the plaintiff can support his claims.  These tribunals require a letter from an expert physician which clearly asserts that the defendant's conduct deviated from accepted standards of medical practice, and that this deviation caused harm to the patient.  Without such support, the case will be dismissed unless the plaintiff posts a bond to cover costs associated with defending the case.

                Obviously, the pre-trial screening procedures have assisted in eliminating some of the frivolous litigation that is brought.  However, there is also a second, more practical, consideration for plaintiff's attorneys.  This relates to the cost of conducting and proving a medical malpractice case.  In the Oklahoma case, the discovery period was over three years and an excess of thirty depositions were taken.  These depositions included depositions of not only fact witnesses but also of expert witnesses.  One of the major expenses of prosecuting and defending medical malpractice cases is the cost associated with the utilization of expert witnesses.  Expert witness fees for pre-trial activities can range from anywhere from $150-500 per hour.  Therefore, the cost to the plaintiff of having his experts testify at a five or six hour deposition is fairly significant.  Further, if the case proceeds to trial, These time and expense considerations have weeded out many lawsuits which might otherwise have been pursued.

                Finally, most medical malpractice insurers are not inclined to simply settle malpractice suits for "nuisance value."  One of the concerns is that doing so would only proliferate the number of lawsuits which are brought by plaintiffs.  Another deterrent to settling lawsuits for nuisance value have been laws which require that all settlements be reported to state licensing boards and the National Data Bank.  This reporting requirement often causes physicians to adamantly oppose any settlement of a case which will result in the settlement being reported against them with these data banks.

                Seeking sanctions is an appropriate remedy to seek against  parties who pursue frivolous lawsuits.  Such sanctions are generally the ultimate deterrent to the filing and pursuit of unsubstantiated allegations of negligence against physicians.  While these lawsuits will never be completely eliminated from the American Judicial System, the award of sanctions as well as the other safeguards inherent in the system will hopefully prevent the time and agony experienced by health care professionals who might otherwise find themselves unjustifiably accused of negligently injuring the patients for whom they sought to care.


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    Frivolous Actions

    by Attorney Frank E. Reardon

    June 1997

    Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration