During his 2011 State of the Union Address, President Obama was not breaking new ground when he coupled “medical malpractice” and “frivolous lawsuits.” Presidents from both sides of the aisle have invoked the menace of malpractice lawsuits for decades:

Richard M. Nixon, 1971:
The climate of fear which is created by the growing menace of malpractice suits also affects the quality of medical treatment. Often it forces doctors to practice inefficient, defensive medicine—ordering unnecessary tests and treatments solely for the sake of appearance.

Gerald Ford, 1976:
Let's take the problem that affects doctors, the malpractice insurance that they want to have for their protection. The judgments that have been granted in court cases have increased rates very substantially.

Jimmy Carter, 1978:
We must eliminate from our judicial system cases which can be resolved in other ways.[...]We must look for ways to reduce the tremendous burden of medical malpractice costs.

Ronald Reagan, 1986:
Our Administration will initiate a major study of high malpractice insurance premiums paid by health care providers and practices that minimize malpractice exposure.

George H.W. Bush, 1990:
And I ask you today to avoid the understandable urge to practice "defensive medicine," where doctors, fearing litigation, too often dictate treatment that is unnecessary, where the threat of lawsuits threatens the very research that is so desperately needed to save lives.

Bill Clinton, 1993:
There will also be…a crackdown on fraud and abuse, fewer frivolous malpractice lawsuits, fewer unnecessary procedures done just to get the money and more responsibility for individuals for their own health.

George W. Bush, 2005:
No patient has ever been healed by a frivolous lawsuit; no small business has ever grown because of a frivolous lawsuit; the cause of justice is never served by frivolous lawsuit.

After 40 years of pairing the terms “frivolous lawsuit” and “medical malpractice,” the general public (and physicians…and presidents) may be inclined to think the two go hand in (rubber) glove. Unfortunately, that notion is counterproductive. The term frivolous is overly dismissive: conflating truly meritless cases with those that may lack a solid clinical basis (following discovery), involve temporary or emotional injuries, or name as a defendant a physician who believes he or she was not directly responsible for the care the patient is questioning.

Even when applying a much broader interpretation of the term than its legal definition, “frivolous” malpractice suits are less common than the politicians espousing them. Plaintiffs whose claims lack the fundamental legal components are challenged to find an attorney willing to devote time and out-of-pocket resources, unlikely to find a tolerant court, and even less likely to receive compensation. In states, such as Massachusetts, with a formal process to establish the merit of a malpractice allegation, plaintiffs who prevail without verifiable damages or a patient relationship with the named providers named are the rare exception rather than a common nuisance. From 2006–2010, less than six percent of lawsuits naming CRICO-insured defendants were dismissed as frivolous. The vast majority of cases that go forward are deemed (by a tribunal of clinical and legal experts) to have some merit.

Rather than dwell on the frivolous bogeyman, politicians, and health care providers will likely be more successful at reducing patient injuries, costs, and lawsuits by studying the underlying causes of the malpractice cases that reflect suboptimal care and present opportunities to repair flaws in the health care delivery system. Seriously.

Additional Material

• Claims, Errors, and Compensation Payments in Medical Malpractice Litigation

• National Costs of the Medical Liability System