Consequences for their actions

The SE Texas Record Apr. 26, 2008, 5:57pm

Some lawyers seem to persist in behaving unethically. Yet they infrequently face punishment, even when it appears they are caught red-handed, critics contend.

Judges are lawyers, too, and some jurists also seem reluctant to punish a fellow attorney, even when it's deserved.

That perception may be changing in Texas, thanks to a ruling this month by the state Supreme Court.

On April 18, a majority of justices closed a loophole used by some frivolous-filing attorneys in medical malpractice cases.

Justice Dale Wainwright's opinion said lawyers who file frivolous cases cannot avoid sanctions by simply dropping their claims after-the-fact.

"A claimant could simply nonsuit a meritless claim and later re-file the claim with impunity," Wainwright held.

State law requires any plaintiff suing a doctor to verify the feasibility of the claim within six months by filing a medical expert report. The requirement is part of the Medical Liability Insurance Improvement Act (MLIIA), passed in response to a surge of frivolous lawsuits filed against Texas doctors during the last half of the 1990s.

In the case in question, Adela Trejo of Cameron County sued her doctor after abdominal surgery. When Trejo's lawyer failed to file an adequate expert report justifying the case, the doctor asked the court to make the plaintiff pay his attorneys fees.

Trejo responded by dropping the lawsuit, and the lower court followed, denying the doctor's request to be made whole.

No harm, no foul, the judge argued.

In overturning that ruling, Wainwright and his fellow justices noted the obvious: even when they come-and-go quickly, frivolous lawsuits are never without harm. The suits take time away from work and family, cause stress, and incur steep legal fees for the falsely accused.

That's why the Texas legislature acted to put teeth into the MLIIA. It wanted to create real consequences for those who want to use the court as a point of leverage, rather than an instrument of justice. It hoped the law would lead to a cessation of frivolous filings by those looking for a fast buck.

"Allowing defendants to seek sanctions under the MLIIA for attorney's fees and dismissal with prejudice deters claimants from filing meritless suits," Wainwright wrote.

Indeed, real consequences don't kid. They can make for an effective reality. We look forward to watching Texas trial courts enforce this opinion.

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