Personal Injury Law

?Loser Pays? bill is a Medical Malpractice Nightmare

By Hurley, McKenna & Mertz

Adding to the partisan turmoil surrounding the recent health care bill that passed the House of Representatives, is the republican introduced ?so-called Loser pays legislation that would require patients in medical malpractice cases to pay their opponents costs should their cases not succeed? (Joanne Doroshow, 11/5).

First and foremost, ?the underlying presumption is without basis and grossly unfair,? because a loss in the courtroom does not equate to a frivolous lawsuit. If that was always the case, then the appeals process would be wasteful and unnecessary. Furthermore, ?it?s no secret that medical personnel are not 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 bill imposes an arbitration requirement, such that injured parties must first proceed through arbitration, a process that is notoriously unjust. Then, if the plaintiff wishes to go onto trial after arbitration, they are free to do so, if they are ?willing to risk losing the case and having to pay a large hospital bill?[and] hourly legal bills?on top of the economic devastation they may be suffering due to an inability to work, and other related costs.? The vast majority of plaintiffs cannot afford this risk.

At the end of the day, this ?loser pays? rule is patently unfair to the hundreds of thousands of people who are devastated by medical malpractice annually. Even a patient with a strong case would risk losing on a technicality and being economically destroyed by having to pay all the legal costs in addition to the damages they have already suffered ? not to mention the additional challenges victims will face trying to find legal representation. As a medical malpractice lawyer, I find the unjust outcomes that would surely result from a ?loser pays? rule to be intolerable.

Full post as published by Chicago Medical Malpractice Lawyer Blog on November 23, 2009 (boomark / email).