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?
Both an Emory School of Law graduate and MBA graduate of Goizueta Business School at Emory, Chris Nace focuses his practice on areas of medical malpractice, drug and product liability, motor vehicle accidents, wrongful death, employment discrimination and other negligence and personal injury matters.