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Loser Pays Medical Malpractice Legislation Introduced

U.S. Senators Saxby Chambliss (R-GA) and Lindsey Graham (R-SC) have introduced “loser pays” medical malpractice legislation which would require patients to pay the defendant’s court costs if they lose their case. They say that this would reduce the number of frivolous lawsuits which increase the cost of medical care.

“Reform of medical malpractice is one of the key, missing ingredients from the health care reform proposals being debated in Congress,” said Senator Graham. “A ‘loser pays’ system is one of the best devices available to prevent frivolous lawsuits from costing all of us. When both parties in a lawsuit are subject financial penalty, people think longer and harder about bringing a questionable case forward. Most western nations already have a ‘loser pays’ rule, and it is time our own country adopts this concept.”

Senator Chambliss of Georgia added, “This critical piece of healthcare reform has been missing from every Democratic proposal. 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 healthcare for everyone. ‘Loser pays’ should go a long way toward discouraging such junk lawsuits and lowering the cost of practicing medicine.”

The state of Florida had a “loser pays” rule for medical malpractice claims between 1980 and 1985. During that time, the percentage of medical malpractice suits that went to trial was reduced by 50 percent.

The system proposed by Chambliss and Graham would create a system of preliminary, non-binding arbitration for medical malpractice claims prior to court. The case would go to court if one or both of the parties rejected the arbitrator’s decision. The bill is called the Fair Resolution of Medical Liability Disputes Act of 2009.

If passed, this bill would discourage injured patients from taking their medical malpractice cases to court.

“There are several things wrong with this legislation,” attorneys from Greenberg & Bederman, LLP wrote in a statement, “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 percent over the past fifteen years, the average annual total payment for verdicts has declined 8 percent over that same time period, and so-called ‘million dollar verdicts’ accounted for only 3 percent 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.”

If you have been seriously injured by a health care provider in Georgia, contact an experienced Georgia medical malpractice attorney. Call MLN Law at 404-531-9700 to schedule a free consultation.