Loser Pays is a Bad Idea

There is a very bad proposal coming from Georgia’s Republican U.S. Senator Saxby Chambliss as a way to keep health care costs down. Chambliss is known to be a friend to big business and his proposal shows it.

Chambliss is co-sponsoring legislation he says would cut down on so-called “frivolous” malpractice lawsuits.

Instead of capping the jury awards to the injured, cruel in itself if a truly injured person wins their case before a jury and is then told, “Sorry, state law caps what the jury wanted you to have.” Equally cruel, Chambliss has been joined by Sen. Lindsey Graham, a South Carolina Republican, in supporting a so-called “loser pays” legislation that would require those involved in a medical malpractice claim to enter nonbinding arbitration to try and resolve their differences.

Only if that did not resolve the dispute could they go to court, but if the injured loses, he or she would be on the hook to pay the opponents’ legal fees which easily could run into the hundreds of thousands of dollars.

Chambliss defends the proposal, called the Fair Resolution of Medical Liability Disputes Act of 2009.

Now remember this would apply, even if the person is successful before a jury but has their case turned over on appeal. That means all a deep-pocketed corporation has to do is keep filing appeals to higher courts and eventually the injured will run out of funds or their lawyer will. That’s how corporations use the courts to stomp on people and make them go away.

So ultimately the physically injured can become fiscally injured. The end effect will be no lawsuits are filed because no one wants to take the chance on what an unpredictable jury will do. And that’s the point.

In a statement Chambliss said, “While no one with a valid claim for medical malpractice should be denied his day in court, those who bring frivolous lawsuits raise the cost of health care for everyone, ‘Loser pays’ should go a long way toward discouraging such junk lawsuits and lowering the cost of practicing medicine.”

Folks – there are no frivolous lawsuits that I’m aware of filed by most big law firms. No one wants to put out the couple of hundred of thousands in lawyer time and hiring expert witnesses unless there is a case. Period. It just doesn’t make financial sense.

And remember judges are given the discretion to throw out a case they think is meritless. Also the wrongdoer can file a motion for a “summary judgment” to have the case thrown out before it goes to trial. There are plenty of ways lawsuits, even those with merit, never see a courtroom. The deck is already stacked against the plaintiff, an individual who is injured through no fault of their own.

Ultimately it is the taxpayer, you and I, who bear the cost of the injured if there is not a remedy through the courts. And that is just fine with the individual or institution that has harmed you. The doctor who is guilty of malpractice, a hospital that performs a wrong site surgery, or a pharmacist who doles out the wrong medication, can continue with business as usual, unchecked and free to harm some other unsuspecting person.

Hopefully it won’t be you.

Lawsuits provide a check and balance to the system. Their presence works. Even the editor of the Journal of the American Medical Association agrees that because of the imperfect system of bringing drugs and medical devices to the market a courtroom remedy “provides a system of civil justice designed to compensate patients, deter unreasonably hazardous conduct, and encourage innovation in product design, packaging, labeling, and advertising.”

What savings would we see from adopting Sen. Chambliss’ plan? According to Public Citizen and the Congressional Budget Office (CBO), civil lawsuit reforms could save about 0.05 percent a year or $11 billion.

Instead, how about a system where we work on curbing dangerous doctors, and medical errors as a way to reduce health care costs? Not only do we save money but we don’t injure patients in the process.

Source reports: http://www.thepoptort.com/2009/11/loser-pays-is-a-medical-malpractice-loser.html

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