Medical Malpractice - Loser Pays

Posted on November 10, 2009 by Greenberg & Bederman

Tort Reform - Loser Pays

 

Since President Obama began moving forward on health care, there have been several attempts to either stop or dilute his ideas on health care reform to the point where they will be completely ineffective if they are put into practice. Some of the ideas that have been put forward are geared towards removing “restrictions” that are apparently removing any incentives for insurance companies to lower their rates. Among these ideas are removing the restrictions that force people to buy insurance only in the state in which they are living, which would (in theory) keep insurance rates low by allowing people to hunt for the lowest prices.

Another idea that has been a prominent part of the Republican platform is that of “tort reform,” or, putting limitations on the rights of Americans to have their grievances decided in a court or law:

“Ending junk lawsuits: The GOP plan would help end costly junk lawsuits and curb defensive medicine by enacting medical liability reforms modeled after the successful state laws of California and Texas.”

We’ve actually seen how liability reforms in Texas have worked, and to call these new laws “successful” is a stretch. All these caps have done in Texas is made it financially impossible for many medical malpractice injury victims to bring their cases to court. And they have also done comparatively little to lower medical malpractice insurance rates, which is what the supposed purpose of these laws was in the first place.

It has been our experience that most “tort reform” initiatives don’t do much except price victims out of the courtroom, and the new proposal by Senators Saxby Chambliss and Lindsay Graham is a perfect example of that premise.

 

The bill is called the “Fair Resolution of Medical Liability Disputes Act of 2009,” but the real practical title of it should be “The Loser Pays Act.” What this legislation does is require litigants in medical malpractice disputes to engage in unnecessary, ineffective and time wasting arbitration, followed by a standard court proceeding in which the loser has to pay for the winners legal bills.

 

This legislation would do nothing to improve the state of medicine in America, and would in fact simply discourage victims of medical malpractice to take their cases to court.

 

The first element of the bill requires any medical professional who takes at least 25% of his or her patients from Medicare to undergo mandatory arbitration for any medical malpractice case. This wouldn’t necessarily be a bad thing if the arbitration carried any weight, but since its non-binding, it is essentially an unnecessary delay. So why have it at all? The answer is that it raises the financial stakes. No doctor or medical malpractice victim would walk into arbitration without legal counsel, which means that there will be more billable hours involved for a firm that represents the doctor. That matters because of the second element of the bill, which reads as follows:

 

“-If one or more of the parties rejects the arbitrator's decision, the case may continue to court. The party or parties who rejected the arbitrator's decision is subject to a "loser pays" rule.

-If the court judgment is not more favorable to the rejecting party than the arbitrator's decision, the rejecting party pays the opposing party's attorneys' fees from the date of the arbitrator's decision, absent a finding that requiring the payment would be manifestly unjust.”

There are several things wrong with this legislation, but there are a few glaringly wrong presumptions that we think should be addressed immediately. The first one is that medical malpractice lawsuits are “junk.” Medical malpractice lawsuits involve patients who have been seriously and irrevocably injured by medical negligence, and it is not unreasonable or greedy for these malpractice victims to seek compensation for their injuries.

Another bad premise is that lawyers are actively seeking out every stubbed toe or sprained ankle and attempting to turn them into million dollar verdicts. Attorneys are very selective about the medical malpractice cases that they take, especially considering that the vast majority of us don’t charge by the hour. Medical malpractice injury attorneys don’t accept cases unless there is clear and provable harm, and even then it is still very difficult to win a case. And the numbers bear this out; the number of medical malpractice payments has declined 15% over the past fifteen years, the average annual total payment for verdicts has declined 8% over that same time period, and so-called “million dollar verdicts” accounted for only 3% of medical malpractice payments. This is hardly a climate where plaintiffs need to be punished.

And what is truly wrong about this legislation is that it does just that. In a court of law, there is no way of predicting what sort of verdict a jury will bring back. And what will happen to the inevitable person who, despite all the evidence to the contrary, loses his case and is then forced to pay for the legal bills of the doctor who injured him in the first place? He will no doubt serve as an example for anyone who dares to seek damages for a medical malpractice in a court room.

This legislation, along with damage caps and attempts at removing contingency fees, are all put forward with one aim in mind. Insurance companies want to make it financially impossible for people to sue them. And if this bill is actually offered up as a compromise in order to obtain the health care votes of a few Republican senators that is exactly what will happen.

As attorneys who represent medical malpractice victims in Maryland, D.C, and Virginia, we here at Greenberg and Bederman know exactly how difficult it is to get a malpractice case through the court system, and this is why we bristle at the notion that it’s somehow “easy” to get a successful medical malpractice verdict, or that even more arbitrary and unnecessary obstacles are somehow needed. 

If you or a loved one in the Washington, D.C. area has been injured due to the negligence of a doctor or other medical professional, contact Greenberg and Bederman  or a free medical malpractice legal consultation today.

 

 

 
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