Is This Lawsuit Frivolous? I'm Just Askin' a Question

In his State of the Union address this past January, President Obama said he was "willing to look at other ways to bring down [health care] costs, including ... medical malpractice reform to rein in frivolous lawsuits."  There are frivolous lawsuits in many areas of life.  Professional liability cases utterly lacking in merit are the ones that vex doctors, but we are not alone.

The other day the Associated Press reported a lawsuit filed by a woman in Philadelphia.  She ordered coffee in a Dunkin' Donuts store.  She claims the server put sugar in the coffee instead of artificial sweetener, causing her to go into "diabetic shock."  Her lawyer reportedly said she didn't even finish the coffee before being overcome by symptoms of illness, resulting in a trip to a hospital emergency department.

If you are a doctor or a nurse, especially one who works in an emergency department, you know how preposterous this claim is.  If you aren't, I'll just tell you: consuming the amount of sugar that one might add to a cup of coffee (and by this account, less than that) does not cause "diabetic shock."

This happened in Philadelphia, and Philadelphia lawyers are notorious for ... well, let's just say that anyone who ever has reason to worry about the risk of becoming a defendant in a civil liability case would prefer not to be anywhere near Philadelphia.

So, is this frivolous just because the claim is preposterous?  A plaintiff's attorney would say no.  The idea is that the plaintiff's allegation is a matter of fact to be determined by a jury.  It would be frivolous if the woman claimed she went into "diabetic shock" because she walked past a Dunkin' Donuts store and smelled the donuts baking.  But the lawyer would say this case should be allowed to proceed, and if expert witnesses convince the jury the woman's claim cannot be supported, the jury will return a verdict in favor of Dunkin' Donuts, and justice will have been properly served.

But maybe Dunkin' Donuts will regard this as a nuisance lawsuit that would be needlessly costly to defend and will give the woman money to settle the case and cut their losses.  That would be a shame, but it's the sort of thing that happens all the time, and it encourages plaintiffs and lawyers to file claims of dubious merit.

Maybe there is more to this story than reported by AP.  Maybe if I had the opportunity to read the action as filed I would think, "Well, I suppose there could be something to this."  But I really doubt it.  A judge should be able to consult an expert (or panel of experts) serving the court - not either side in the case - who could advise the judge that the allegation is certainly baseless, and the case should be dismissed before it goes any further.

Maybe you have no sympathy for Dunkin' Donuts because it's a big company with lots of money.  But the company - and every other company doing business in this litigious environment - has to buy liability insurance to protect itself from losses that might be incurred in the course of doing business.  Cases lacking in merit drive up the cost of that insurance.  That adds to the company's cost of doing business, and those costs are passed along to the consumer.  Part of the price of your coffee and your donuts goes to paying for this.  Is it worth it?