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The Back Room Stuff

     A man called a repairman to his house. He had a leak in his roof, right over the kitchen table. When the repairman came, he asked, “When did you notice the leak in your kitchen”. The man replied, “Last night, when it took me two hours to eat my soup”.

     The story reminds me of the back room politics that surrounds the national health care debate. If you watched the President’s State of the Union address the other night, you might have noticed that he indicated that he  was open for compromise, to work through the differences in the health care law.  

     That brief mention came as a result of some of the leaks that we are hearing from the back rooms of the halls of Congress. The debate on health care reform has brought out the tort deformers and Big Business.

     There are many ideas  being floated for compromise, to try to get the Health care legislation sailing through. Some include ideas of medical malpractice limits, which President Obama has already indicated that he would be willing to consider. In fact, during his Presidential campaign, he had suggested that there needed to be reforms relating to the frivolous lawsuits that are brought against doctors.

     There are many other “reform re-runs” that are being brought up again. Such as, there is discussion to limit Pharmacuetical liability and to introduce limitations on how long a person has to file an injury lawsuit. “One leak” on the idea of filing would include putting a limitation of one year to bring a lawsuit. That way, Big Business could better quantify what exposures they may face, relating to bad products.

     I blog on two other items that have leaked out. Those are the concepts of “Loser Pays” and the idea of limiting lawyer contingency fees.

     On the surface, it seems that those two ideas, as amendments or compromisees to the health care legislation, should have plenty of momentum. Who doesn’t think that “Loser pays” would help stop frivolous lawsuits?

     Limiting contingency fees is an easy argument. Most people don’t like lawyers and think that law is a license to steal. So, when there is a discussion of limiting contingency fees, there probably is little concern from the public.

     For the purposes of looking at that; instead of arguing against it, let’s look at the alternative. Whenever there is an argument to limit contingency fees to lawyers, you will notice that there never is a movement to limit  how much a defense or corporate lawyer can charge for the defense. Basically, what Big Business and their pushers are saying is that, “we want to limit your representation but our lawyers have no limitation”. If they can affect the opposition, they can reduce responsibility.

     The same argument applies to “loser pays”. If you look closely, they always want to put the responsibility on the party bringing the action. If you are going to introduce legislation like that, then why not make it apply both ways? Whoever loses should pay the costs and attorney fees of the opposing party. Believe me, you will see them scurry when that is proposed.

     That is just a brief discussion of some of the leaks from the back room. I guess a greater question would be, what does that really have to do with health care? The spinsters can figure out an answer to that because Big Business has no limitations on what they can pay.

When Opinion Ignores Reality

While sitting in the doctor's office today, I was reading the USA Today opinion page. It's amazing what sometimes becomes interesting when you are just waiting.

The opinion page is like a letter to the editor. The one that caught my attention was dealing with the recent health care bill. The author reminded that former Senator, John Edwards, had been named one of the biggest political losers of 2009. He recommended that Edwards should consider going back into the lucrative practice of law, since the health care bill had not adopted any tort reform measures regarding medical malpractice. I am sugarcoating some of the author's venom.

 This takes us back to the supposed purpose of malpractice reforms to be included in the health care bill. the reasoning was that by reducing doctor liability, it would reduce testing and "defensive medicine", which in turn would reduce medical costs.

For a blog, it would be both boring and impossible to argue logic for that position. Instead, I'll simply remind you of the argument for restricting liability for drug companies. At that time, bureaucrats and politicians were saying that drug companies needed protection from trial lawyers. Otherwise, if you did not enact caps, limits and immunity, drug companies would no longer have incentives to produce helpful medication. And, good drugs would not make it to market. As such, without these limits, would all suffer.

 Fortunately, for the safety of patients, no such immunity and limits was passed. In fact, some were even lifted. Yesterday, an interesting statistic was provided by the FDA. The number of new drugs that were cleared for market by the FDA, kept pace with 2008. This is statistical proof that the push for safety in early warnings and citations to drug companies has not affected the pipeline of medications to market.

The FDA also approved drugs known as a "first-of-kind", which shows no hesitation of drug companies in pushing their drugs forward. Again, without government intervention and the silly reasoning of politicians, the free enterprise is at work rewarding companies that produce medications safely, with appropriate warnings. Of course, drug companies don't like the extra hoops that they have to go through. So, I expect that they will continue with their illogical tort reform and their large political donations to the receptive politicians.  

Loser Really Loses

It seems a paradox to include issues about doctor mistakes in the national health care bill. However, apparently legislators don't see the oddity of this. As such, one such inclusion, in the potential health care legislation, involves a proposal co-sponsored by Senators Saxby Chambliss (R-Ga.) and Lindsay Graham (R-SC).

The Senators have proposed a restrictive "loser pays" provision. In their bill, when a patient brings an action against a doctor and loses, then the patient would also be responsible for all legal fees and costs that were spent by the doctor, to defend himself.

On it's face, some probably would get this far in my blog and say "So?". Well, you'll note that it doesn't go both ways. If you're going to make a patient pay a doctors attorney fees and cost, if they lose, why not make the doctor pay the patient's, if the case has to go to trial and the doctor loses . Why can't "loser pay" go both ways.

The justification for such legislation is to  (get ready for the buzzwords) stop the "frivolous lawsuits". The legislation also includes a provision, according to the Atlanta Journal-Constitution,  that would require both parties to enter non-binding arbitration to try to resolve disagreements.

I have a few thoughts on this legislation that might differ from some other trial lawyers. First, I do think that some claims brought against doctors have no merit and could be deemed as frivolous. Usually, in my experience, it involves some young lawyer who thinks that just because there is a bad result, it must mean that there should be some payment by the doctor. Some states have cured this by requiring that an expert opinion on the standard of care be filed or, or at least, certified to exist, before a malpractice suit can be brought.

Second, I think that non-binding arbitration can be a huge waste of time, requiring the plaintiff to spend, to put on their case and just added costs to the whole procedure, while the defendant completely ignores any arbitration finding. However, in South Carolina, some counties have mandatory mediation. It causes the parties to get together with a neutral individual and results in many settlements. Sometimes it even gives the plaintiff a sense of having their day in Court.

 Finally, interestingly enough, I asked a legislator, a few years back, to introduce a "loser pay" bill in the Virginia General Assembly. It was the same as what has already been enacted as law in North Carolina. There was such opposition to it that it didn't make it out of committee.

I guess this legislation has to be looked as to whether or not it significantly impacts access to the courthouse, by those who don't have the resources anyway, and are then scared off by the one sided requirement of paying. In a just world, those responsible are always held accountable. Unfortunately, no one really believes such is happening. 

Several years ago, I tried a malpractice case in South Carolina. The jury stayed out 6 hours and then came back with a defense verdict. Two of the jurors were troubled by the result because they felt that malpractice had been committed. However, they said that, in the jury room, the jurors were all concerned about the possibility that doctors would leave the state, if verdicts were entered against them. These jurors believed the propaganda of tort reformers. In that instance, my 80 year old client would have been responsible for those defense costs.   

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