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No whining

July 1, 2008 By 2 Comments

I’m going to try my best to get my point across without whining. I’ll probably fail, but I’ll try. What I have to say is nothing earth-shattering, but here goes: The overall quality of life in this country would improve significantly if we could reduce the impact of frivolous lawsuits. It’s no secret where I stand on this issue and I’ve taken some criticism (via email) for being vocal about this issue when I myself have never been sued. That is such nonsense, like saying I can’t crusade against drunk drivers just because I’ve never personally been injured by one.

The harm that the overly litigious climate in America does to the people is seen in the higher prices we pay for everything — higher prices that go to subsidize legal fees, which essentially give no benefit to the people, other than for the small minority who get money as tort attorneys. It doesn’t really seem fair. The overly litigious climate also limits the options we have, as witnessed by the unavailability or lessened availability of certain high profile items, such as IUD’s, vaccines and yes, even breast implants. It even limits our access to very basic life privileges, such as the chance for children to play baseball.

For some items, such as life-saving childhood vaccines, more than half the cost of the vaccine goes towards this "lawsuit tax". We can’t fault lawyers for doing all they can to get away with it because, well, because they CAN get away with it. The trial lawyers legally spend millions lobbying our politicians to set laws that favor their ability to play their games. So what can we do? We need to increase our awareness. I’m going to do my part. Once more and more hard-working American people realize just how much we lose because of frivolous lawsuits, they would wake up and start voting for politicians who take action against this problem, no matter how much trial lawyers contribute to their campaign funds.

As I said before, I have yet to be sued in over 10 years of practice. However, that doesn’t mean my staff and I don’t waste a lot of time and energy towards playing the games we need to play to defend ourselves against frivolous lawsuits. I still pay close to $30,000 per year for liability insurance, despite having a totally clean track record. I still have to do things to the letter even to the detriment of our patients. For example, if I have expensive fertility drugs that are one day past the expiration date, I have to dispose of it, even though I could easily donate it to a patient.

So rather than just ranting, the question to ask is "What can we do about it?" There are many things we could do, but one logical one is to adopt a fair "Loser Pays" policy in our country with regards to frivolous lawsuits, and all lawsuits in general. There are others more eloquent than I who have laid out strong arguments supporting the wisdom of this and I will direct you to them here, here and here.

I don’t hate lawyers. I hate the unfair legal SYSTEM. You can’t blame lawyers for their political efforts that keep the system the way it is and you can’t blame them for using the system to their gain. If it were legal for you to walk into your neighbors’ homes and take things from them for yourself, wouldn’t YOU be tempted to do it? As a nation, we need to take action to make life better for all of us, and fixing the broken tort system is one way.

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  • http://www.mloknitting.com/ MLO

    Like many folks you have fallen victim to a fallacy. The majority of frivolous lawsuits do not involve doctor and patients. They involve business to business suits. These suits are very much a game of who has the most money already. To institute a loser pays system would actually entrench further the already wealthy as power brokers. In a democracy or democratic republic such an idea is anathema. The loser pays scenario only give the wealthy more ammunition to keep people down. (Study the labor movement for examples of this. Nothing is that simple.)

    Most trial lawyers, despite the press to the contrary, are not wealthy.

    The real enemy for everyone involved – doctors, patients, businesses, etc. – is the insurance block. They have successfully created an environment where everyone else is losing money. Who really wins in malpractice cases? Not the lawyer, not the patient, and not the doctor. Nope, the insurance company increases rates all around because for the patients in general, this procedure is riskier (financially for the insurer) so maybe we won’t have to cover it (unless mandated). If it is mandated, then we (the insurers) will up the rates or try to deny things around it to make it hard for someone to actually pursue said treatment. The physician can also increase our bottom line by our increasing base malpractice rates for his specialty. The lawyer? If he is lucky, gets to spend a lot of time in court on appeals and may actually make a percentage of a much smaller settlement than was originally awarded.

    Get rid of private insurance. Have a two-tiered national healthcare system that builds in a “mistakes hedge” for those who are injured by malpractice or just plain mistakes, and use that. Do not allow Reaganites and Bushites to go anywhere near this. (Old fashioned Republicans still had a sense of the Public Good.) For those who want it, allow market-based competition for second tier (quicker, private, costlier out-of-pocket) healthcare. It does work when done well. But, there has to be a public will to do it. Most people are blinded by the rhetoric of entrenched money-grabbers who have successfully focused on non-issues rather than core issues.

  • IVF-MD

    It is logical to believe that a loser pays policy would favor who is more IN THE RIGHT, ie the winner of the case, and not favor someone based on money. This is why it is logically the fair and equitable way to go. A poor plaintiff with a solid case is more likely to win his case. A rich person with a frivolous case is more likely to LOSE his case and have to incur the court costs of the poor person whom he so frivolously sued. If our court system is not able to do its job of deciding verdicts justly based on the facts rather than based on how much money each side has, then that in itself is the problem and needs to be addressed.

    You are entitled to your opinion, but to me, it is just logical and fair that the side who is found by the courts to be the winner, should be fairly compensated for the costs of defending itself.

    Nobody is saying that poor people should always pay or that rich people should always pay. It’s the LOSER, the one who was in the wrong, the one whose case is judged invalid, the one with the weaker case, the one whom the courts has decided against that should pay. The way the system is now, even if you vindicate yourself and are awarded a judgment successfully exonerating you from the false accusations or false claims, you still are on the hook for all the costs. How can that in any way be fair? And why is it that most other civilized countries have a Losers Pays policy?

    I do agree with you about letting market-based competition decide what’s best for each individual. Nobody should be FORCED to spend on insurance. They can then make up their own minds and buy insurance only if the insurance companies do a good job of creating a worthwhile product with enough value that merits people freely choosing to buy it.