Why didn’t he sue the lawyer right back?

In an interesting article on medical malpractice in the New Yorker (14 Nov 2005, p.63), Atul Gawande writes,

I have a crazy-lawsuit story of my own. In 1990, while I was in medical school, I was at a crowded Cambridge bus stop and an elderly woman tripped on my foot and broke her shoulder. I gave her my phone number, hoping that she would call me and let me know how she was doing. She gave the number to a lawyer, and when he found out that it was a medical-school exchange he tried to sue me for malpractice, alleging that I had failed to diagnose the woman’s broken shoulder when I was trying to help her. (A marshal served me with a subpoena in physiology class.) When it became apparent that I was just a first-week medical student and hadn’t been treating the woman, the court disallowed the case. The lawyer then sued me for half a million dollars, alleging that I’d run his client over with a bike. I didn’t even have a bike, but it took a year and a half-and fifteen thousand dollars in legal fees to prove it.

This made me wonder: why didn’t Gawande sue that lawyer right back? If he didn’t have a bike, that seems like pretty good evidence that they were acting fraudulently, maliciously, etc. I could see why he might want to just let things slide, but if it took a year and a half and $15,000, wouldn’t it make sense to sue him back? I’m sure I’m just revealing my massive ignorance about the legal system by asking this.

P.S. Gawande’s article is of statistical and policy interest, as he discusses the cost-benefit issues of medical malpractice law.

3 thoughts on “Why didn’t he sue the lawyer right back?

  1. I have often wondered along similar lines about situations like that. It seems as though bringing something along the lines of a frivolous suit action would be appropriate, but, again, I do not know much about the legal issues involved.

  2. When you are a first year medical student, you have lots of debt & limited time, you're already out 15,000 on this project, and this scumbag lawyer obviously makes a living being a scumbag, so your priors on success aren't good, you can imagine you might be adverse to risking another 15,000 in debt to continue the fight.

    The lady and her lawyer sound like real bad actors, it's a shame, but not surprising, that Gawande didn't see fit to publicly shame them in the pages of the New Yorker.

  3. I wonder if it has something to do with the British "loser-pays" system of tort. (NB: I haven't read the whole Gawande article, and if the writers here are familiar with the UK system and know other specifics, apologies for this sounding like lecturing.) That is, if you bring a lawsuit and you're ultimately the loser, you pay legal fees. Gawande's 15K might have been repayed by the woman who filed the suit since she ultimately lost. Until the determination, however, Gawande would ostensibly be out the money from his own pocket. This is done to help drive out frivolous lawsuits (whether it works is an open question. The second of the lawsuits here being the more ridiculous, I wouldn't think it would happen, but perhaps the lawyer had convinced her that Gawande had a couple of bucks and would pay her before it ever got to court.(Raising the question for Gawande: if he'd had 10K in his pocket, knowing what he knows now, would he have just paid it to settle?)

    Alternatively, Gawande might have had a reasonable chance of winning a counter-suit, but the chance that he could lose and end up paying HER legal fees might have made him just want to get on with his life and not risk the loss, even if the risk was low.

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