Add yet another awful idea to the growing list of anti-patient rights schemes being considered by Congress 
as part of the larger health care reform debate. U.S. Senators Saxby Chambliss (R-GA) and Lindsey Graham (R-SC) have introduced so-called “loser pays” (a.k.a. “English Rule”) legislation
that would require patients in medical malpractice cases to pay their opponent’s court costs should their cases not succeed.
Why is that such a horrendous idea? Let us count the ways…
First, the underlying presumption is without basis and grossly unfair (i.e., because a patient loses in court, the case was somehow “frivolous.”) As the Harvard School of Public Health found in 2006, such losses merely “underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers.”
Indeed, it’s no secret that medical personnel aren’t always forthcoming with information about their screw-ups, and filing lawsuits can be the only way injured parties can get to the bottom of what happened. A “loss” says far more about the difficulty patients have getting straight answers in the first place than it does about any so-called “frivolous” act.
Second, the Chambliss/Graham bill requires injured parties to first enter arbitration—a process that is notoriously unfair and can go on for years.
Then, once that nightmare is over, if injured patients still wish to go to court, they’re free to do so—that is, if they’re willing to risk losing the case and having to pay a large hospital for its inflated, hourly legal bills (and that’s on top of the economic devastation they may be suffering due to an inability to work, and other related costs).
that would require patients in medical malpractice cases to pay their opponent’s court costs should their cases not succeed.
Why is that such a horrendous idea? Let us count the ways…
First, the underlying presumption is without basis and grossly unfair (i.e., because a patient loses in court, the case was somehow “frivolous.”) As the Harvard School of Public Health found in 2006, such losses merely “underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers.”
Indeed, it’s no secret that medical personnel aren’t always forthcoming with information about their screw-ups, and filing lawsuits can be the only way injured parties can get to the bottom of what happened. A “loss” says far more about the difficulty patients have getting straight answers in the first place than it does about any so-called “frivolous” act.
Second, the Chambliss/Graham bill requires injured parties to first enter arbitration—a process that is notoriously unfair and can go on for years.
Then, once that nightmare is over, if injured patients still wish to go to court, they’re free to do so—that is, if they’re willing to risk losing the case and having to pay a large hospital for its inflated, hourly legal bills (and that’s on top of the economic devastation they may be suffering due to an inability to work, and other related costs).
The bottom line is that under a "loser pays" rule, any injured consumer could fear pursuing even a strong case on the chance they would lose and be economically devastated by having to pay all legal costs. The chilling effect on an injured consumers’ right to obtain full and fair compensation in court would be significant – and intolerable.
PopTort:
Excellent, excellent piece on the strawman that is "loser pays" litigation. I referenced your post in my blog, and I gave my own take on this issue:
http://nwbullseye.blogspot.com/2009/11/loser-pays-legislation-only-winners-are.html
Keep up the great work.
Posted by: Brian R Wilson | November 06, 2009 at 11:17 AM