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A story in the Atlanta-Journal Constitution discusses a plan by Senator Lindsey Graham of South Carolina and Senator Saxby Chambliss of Georgia to enforce a "loser pays" system in medical negligence cases as part of health care reform. Such a plan would close the courthouse doors to many individuals harmed by medical negligence cases each year, including the 98,000 who die from medical errors every year.

But the losing party would be required to pay its opponents’ legal fees, which could be in the hundreds of thousands of dollars.

The idea of loser pays means that if you take a case to court and lose, you are responsible for the other sides costs. Costs include minor costs such as filing fees and copying costs, but also would cover costs such as expert fees and possibly attorney fees. These costs in a medical negligence case–if you included the attorney fees–could reach into the several hundreds of thousands of dollars. Ask yourself this: if you were injured as a result of crystal clear medical negligence would you risk being on the hook for $250,000 if a jury found against you at trial? Cases would never get filed. Senators Graham and Chambliss either know this and have no desire but to close the court house doors to injured individuals or have been irresponsible in studying the issue.

Others who have weighed in on the idea see it as a preposterous approach to a minor cost on our health care system:

According to the left-leaning advocacy group Public Citizen, malpractice litigation costs represent less than 1 percent of the total cost of health care in America.

"This is worse than bad, it’s really ridiculous," David Arkush, director of Public Citizen’s Congress Watch division, said of Chambliss and Graham’s proposal.

Arkush said that medical malpractice litigation costs have actually declined in recent years and are at an all-time low, despite the fact that overall health care costs continue to rise.

Attorney Robert Peck said the senators’ proposal isn’t just unnecessary, it’s dangerous for patients.

"It’s not going to solve any problems," said Peck, president of a Washington, D.C., law firm called the Center for Constitutional Litigation. "But it will significantly destroy the access to the courts for patients injured by the negligence of their health care providers."

The fact is that a medical negligence case will cost a plaintiff at least $75,000 in his or her own costs to file and prosecuted. These cases are very complicated and challenging as well as expensive. The idea that there are a number of frivolous lawsuits being filed is simply wrong.

The economics of a medical negligence case are such that frivolous cases simply don’t get filed. A loser pays system would do nothing more than close the courthouse door to individuals who were harmed by the negligence of others. Shouldn’t those that are injured through the errors of others at least have a chance to let a jury decide their case without the risk of a punitive, $250,000 penalty for losing that case?


  1. As someone who funds plaintiffs in litigation, I can attest, from personal experience, that Chris is absolutely correct. It is difficult for any plaintiff to compete financially with powerful insurance and/or corporate interests in any injury/disability case. Previously, the only legal tool available to plaintiffs to fight the fight against the rich and powerful was the contingency fee contract. The client does not have to pay a lawyer unless the case is successful. Considering that the client is usually fighting a muti-million insurance company, the contingency fee contract was a big help. But, it didn't get the disabled plaintiff's bills paid. My company, Lawsuit Financial, started a business, eleven years ago, to provide financial assistance to these plaintiffs to help them through the legal process. Pursuing justice when you are disabled is hard to do; you are inclined to jump at the first decent offer, just to get your bills paid. My company tries to relieve the financial necessity to settle too early and too inexpensively. The service does not solve all of the plaintiff's problems; funding must be sensible and an appropriate fit into case value. Like the contingency fee attorney, the client only repays if he/she wins. Lawsuit funding and the attorney contingency fee contract are the only financial tools available to assist a plaintiff through complex litigation. A "loser pays" system in a legal system that, financially, already heavily favors the defense would be disasterous to the cause of justice. Just as Chris said, the actual cost of litigation and the ease at which an insured or corporate defendant can afford to lose and pay vis-a-vis a disabled plaintiff would totally inbalance an already out of balance legal system. The injustice of "loser pays" should not be lost on anyone who supports the right of citizens to seek justice against powerful corporate interests. Access to justice for all should be the goal of any democratic legal system. Chris: Thanks for writing about this important issue. Regards, Mark

  2. Gravatar for Jeremy Engdahl-Johnson
    Jeremy Engdahl-Johnson

    Today's medical professional liability system is too adversarial and too expensive. There are alternatives. More at

  3. Gravatar for Mike Bryant

    Hi Jeremy, same nonsense. As to the post, you hit it right on the head. The draconian loser pay makes no sense in the long run. It also tilts the tables future. It also really doesn't even benefit the defendant in the long run, they don't get the money in most cases.

  4. Gravatar for Michael Kirsch, M.D.
    Michael Kirsch, M.D.

    Don't like loser pays either and never felt that caps were ideal, although I supported them in Ohio where they worked. Your estimate of the cost of medical malpractice litigation ignores the cost of defensive medicine, which is nearly impossible to precisely define or assign a cost to.

  5. Gravatar for Jim O'Hare med mal claims guy
    Jim O'Hare med mal claims guy

    Loser pays only comes into play (IF) the mandatory arbitration opinion is rejected, by either side- because the award was not high enough on the plaintiff side, or too high from the doctors view. Taking the process further will only stimulate settlement- Wouldn't it? Isnt this good? Why is this omitted from the article?

    Many claim that 100,000 die from med mal each year - impossible to calculate. Really? Think about it. If this was true, how do you explain that only 3% of claimed med mal turns into litigation? Rather low, and the Plaintiff bar is missing out on 97% of all wrongful death cases out there ! Really? Healthly people are dying by the bushel and 97% of their family members arent paying attention?

    All these arguments lead to a different and cheaper forum- like arbitration? No?

    A true fix requires alot of changes that would affect the core of this lucrative business. Both sides considered. Therefore- it wont happen.

    Personally - I dont get why people weigh the financil impact of med mal on healthcare. HC is the problem with healthcare. It is just an elaborate brokerage system with a 35% overhead. They dont actually deliver the care- the doctors and nurses do. Trim that 35% to the 5% overhead of medicare or the VET. What would that savings be in a 2.5 trillion dollar industry? Defensive medicine causes an expensive diagnosis, if 30% cheaper nobody would care.

    Using med mals affect on the cost of HC =

    It is really like complaining about the music being played on the deck of the Titantic. Not important- maybe that leak is more impportant. The cost of HC is important not the affect med mal has on the cost of HC- please. What next- the price of bullets and its affect on the murder rate?

    regards Jim VP med mal physicians Ins Co pompano Fl

    Go yankees

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