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You've Been Served: Loser Pays, (Almost) Everyone Wins!

Hossfeld, George MD

doi: 10.1097/01.EEM.0000398962.39774.a0
You've Been Served


In 2003 and again in 2005, Texans found ways to impressively increase access to physicians in their state. Access, of course, is a necessary first step in providing good medical care for everyone. Their tort reform measures reversed a severe physician shortage and led to a dramatic proliferation (60% increase!) of physicians practicing in Texas. Counties that had never seen board certified emergency physicians for the first time now have them.

Texas' reform packages weren't anything radical or even unusual. They included caps on non-economic payments, reform in joint and several liability, and changes to punitive damages — pretty standard stuff. The vastly improved medical environment and business environment in general makes Texas the most frequently cited state when experts discuss government done right. Groundbreaking Gov. Rick Perry said he is not finished, though. Now he is proposing a system called “Loser Pays.”

Gov. Perry's plan requires a plaintiff to pay for the defendant's legal fees if the court decided that the suit was “groundless.” That would make a plaintiff's firm think twice (and maybe actually investigate the medical facts) before filing a case. I wish him great luck in pursuing what would be a huge equalizer for physicians under siege in every state.

Among the numerous disparities between the American malpractice system and that of the rest of the world, one of the most basic is the low price of filing a suit here. Very much related, only in America is the defendant doctor guaranteed to be a loser no matter which side prevails. Truth be told, most medical malpractice cases are not filed with the intent of going to trial. Plaintiff attorneys know that many of their cases have little merit, and they seldom prevail at trial. They also know, however, that insurers are usually content to settle for lesser but still substantial amounts due to the astronomical cost of defending even the most defensible case.

Many physicians themselves prefer opting out early as well rather than pay the very real human price involved. Lawyers in general do not recognize the physical, mental, and emotional trauma that comes when a patient or family makes accusations that damage one's reputation. After the sacrifice and dedication involved in becoming a physician, it is only appropriate that plaintiffs have more “skin in the game” themselves.

Admittedly, I am not speaking as a neutral observer who holds the oft-heard opinion that medical malpractice lawsuits are just part of the business of practicing medicine. I've been through a trial, and I can promise you that the personal and family stress, time, and lost work are huge. I challenge anyone who has been through a trial to say otherwise. In addition, there is lost time for attending depositions, attorney meetings, and studying medical records. My insurance company, which of course is paid for with premiums from doctors, spent more than $75,000 during the seven years that the case persisted. And I “won,” a misnomer if there ever was one.

Losing the joy of practicing medicine is a price no doctor should ever have to pay. It's an unfortunate consequence when every patient becomes a potential plaintiff.

Certainly, the plaintiff's attorney invested hours of his own time as well as potentially paying for a plaintiff's experts for opinions. The much greater law firm costs come with trial, and the plaintiff knows it rarely comes to that. Overall, that's still a very small ante for a pot this great, and it simply does not recognize the personal costs to the physician.

The plaintiff probably risks the least. I appreciate their personal loss as I too have lost my parents and other dear members of my family. But people die, and it's not necessary to blame someone for that harsh fact of life. When they say, “it's not about the money,” I've never heard of anyone giving it back. Someone please explain the logic of how handsomely rewarding a plaintiff somehow works “so that no one should ever have to go through this again.” One has to wonder how likely it is the plaintiff would have filed in the first place if he knew he would have to reimburse the physician and his legal team for costs incurred if he lost the case.

Not surprisingly, trial lawyers in the United States want nothing to do with those same rules that the rest of the world plays by. The bar has named this “loser pays” arrangement the “British system,” implying that it is the approach only in Great Britain. It is more accurately called the “rest of the world system” because it is the rule everywhere except here. Despite that, one never hears of a multitude of citizens in other lands being denied adequate legal protection. I do have to admit, though, I feel my eyes get moist when I hear the arguments for representation of that conjectural “little guy” by their litigation champions.

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In Brief

EMN's Own Dr. Hossfeld Wins ICEP Award

George Hossfeld, MD, has received the Illinois College of Emergency Physicians' highest award for fighting against the stigma of physicians who are sued. Dr. Hossfeld received the Bill B. Smiley Meritorious Service Award, which honors individuals who have made significant contributions to advancing emergency medicine in Illinois.

Dr. Hossfeld is a past president of ICEP, and served two terms on its board of directors. He was also one of the first recipients of ICEP's Meritorious Service Award. He currently serves on ICEP's Practice Management Committee and as faculty for ICEP's Oral Board Review Course. After winning a malpractice suit in 2007, he formed a grassroots network of physicians who have gone through trials, and has spoken publicly to encourage his peers to break the silence and stigma over physicians being sued.

In addition to being a representative for the Medicare Carrier Advisory Committee, Dr. Hossfeld has worked extensively with the former Illinois Department of Public Aid, which resulted in rate increases for emergency physicians. Dr. Hossfeld is an assistant professor of emergency medicine at the University of Illinois at Chicago, and the author of the Emergency Medicine News column, “You've Been Served,” which appears regularly in print and in the EMN enewsletter, EMNow. He also writes a column called “Pocket Doc” for the UIC student newspaper, The Chicago Flame.

Dr. Hossfeld

Dr. Hossfeld

© 2011 Lippincott Williams & Wilkins, Inc.