Maryland Injury and Disability Law : Washington DC Metro Injury & Disability Lawyer & Attorney : Greenberg & Bederman : Accidents, Falls, Medical Malpractice : Maryland, DC, Virginia

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.

Noneconomic damage caps. Non economic damages compensate for injuries and losses not easily quantified by a dollar amount, such as loss of enjoyment of life, loss of consortium, or severe physical impairment. This compensation is for the family of the victims who have died or been severely injured. There has been a lot of publicity in connection with huge awards running into the tens of millions of dollars.  Noneconomic damage caps limit the amount for a victim who wasn't damaged economically. In contrast, if the same person's capacity to earn money were damaged as a result of noneconomic damages, there would be no limits on that figure.

Punitive damages caps. These awards are designed to punish outrageous behavior such as companies or individuals who knowingly injure others. Reform opponents argue that by capping punitive damages, there is less cost to companies who put out defective products. Those in favor of tort reform deny that companies would benefit in any way by manufacturing and marketing defective products.

Contingency-fee limits. In many tort cases lawyers do not charge their clients an up-front fee, but  receive a percentage of any monetary award the client receives. Limits on contingency fees would curb the large amounts some lawyers and law firms make on such cases, tort reform advocates say. On the other hand, anti-tort reform groups believe that many poor consumers who were wronged wouldn't have access to effective legal representation if such fees were capped because lawyers couldn't afford to spend the time and money necessary to win such cases.

Other tort reform issues include:

·         Limits on prejudgment interest that would either abolish or greatly restrict the amount of interest on a consumer's award between the time the suit is filed and when a judgment is rendered.

·         Restrictions on a company's liability to compensate victims when several companies are found at fault. In this case, if one or more of the at-fault companies goes bankrupt, consumers who were wronged could receive substantially less than awarded by a judge or jury. While under the current system, consumers may recover the amount of full award from a single defendant regardless of whether the other defendants are solvent.  

·         Rules that would allow juries and judges to reduce the amount of compensation by the amount of any insurance or disability coverage the victim will get.

A factor often overlooked by the proponents of tort reform is not what judicial awards cost the big companies, but what injury and accidents cost the economy and society in terms of lost productivity and the impact on family members who have to take care of the disabled. Some opposed to tort reform claim that accident costs dwarf the costs in the tort system.

Most states have instituted some type of tort reform during the past 10 years. Virginia has done a lot over the last 25 years to enact liability reform. The state has a cap on liability, which has gone from $750,000 to $1 million to $1.6 million. The cap covers economic and non-economic grievances. Furthermore, those caps cover all providers involved in an alleged incident of malpractice, so if the hospital, doctor and nurse are each sued, the caps apply to all parties taken together, not individually. Maryland initiated tort reform in 1986, limiting the amount of non-economic damages patient may receive in medical malpractice cases. The current cap of $1.4 million increases with inflation. These reform efforts has had mixed success, but proponents are working at the federal level to pass laws dealing with class action lawsuits, medical malpractice and asbestos-related claims, among others.

Although The United States is a country with more tort lawsuits than most other countries, in most countries that have lower tort lawsuits, there is a more extensive social safety net. Our country has a free market approach to health care, disabilities and other social issues which also become economic problems. Our tort system is designed with our economic system considered in order to compensate for the lack of social services. In many countries with tort reform, there are more stringent regulation and provisions for health care, disability, and wage replacement, leaving its citizens with basic necessities if injured. In America, many injured people are facing destitution if they are badly hurt.