Not sure what you mean that they always favor the plaintiff, because I see defense lawyers use them all the time as a hammer. From a practical perspective, loser pays doesn’t work in any country like people think it does for the simple reason that often the loser can’t pay. It’s essentially just another way to keep poor people from pursuing a case against the wealthy.

As for only 6 states, this is incorrect, although you may be right that less than 26 provide for attorneys fees every time (my apologies if you are). Very quickly with a Google search I can come up with Arkansas, Texas, Alaska, Florida, Idaho, Michigan, New Jersey which allow in any case. Other statues with that rule provide that you can get attorney’s fees if you’re suing based on a statute which allows attorney’s fees and the state you’re in has an offer of judgment rule based on the federal rule. In the state’s I’m most familiar with, attorneys fees will definitely be allowed in your deceptive trade practices acts, breach of contract matters, etc.

Here’s an article which discusses the efficacy of loser pays rules in Canada:

http://medicaleconomics.modernmedicine.com/memag/article/articleDetail.jsp?id=111474

If we had straight loser pays, I would think that good liability but low damage malpractice cases would be harder to settle, because what would the disincentive for the plaintiff be to pressing for a trial. Let’s say you end up with $10,000 in additional bills due to malpractice on a wrong site surgery, for example? Why settle for $20,000
when you can push for more with zero risk?

Don’t get me wrong: I am not in favor of the “loser pays” system, but if we are going to have a discussion about it, then it should at least be intellectually honest.

The arrogance. See Painless, you won’t ever convince him. He truly believes he is the champion of truth, justice and the American way. We has no idea how motivated by altruism one has to be to have a career (at any level) in EM because altruism and empathy are completely foreign concepts to a trial attorney.

” to cross over to the dark side so to speak. No offense Matt – but that’s life.”

What is? I’m not sure which positions you’re referring to that I’m never going to agree with. Perhaps if you were more specific you might find we agree on much.

“. Even though you may not see it – it’s something I have to live within my practice every day. ”

What do you mean someone is waiting to “ruin your life”? By making you explain yourself under oath? The chances of an individual provider having to pay a judgment out of their pocket are infinitesimal. And “ruin your life” is a bit much isn’t it? You say I don’t understand, but I have been sued. For an amount 200x my net worth, and the claim was not something covered by insurance. Had the plaintiff prevailed it would have been devastating, sure. But I’d still have had my health, my family, etc. My life would not have been over by any stretch of the imagination.

” While Matt may not agree with our viewpoint, he needs to understand it’s valid and real.”

I do understand your viewpoint – to an extent. As I said, I’ve been there, and with far more exposure than you have probably ever dealt with. However, it seems your objection is not so much to the result, but to the process. You, and many physicians, resent having to explain yourselves. It’s understandable – you’re an intelligent person, you’re used to calling the shots, and you’re generally pretty sure you’re right. You need that confidence to do you job. Every professional does. What’s more, none of you seem to have any real concept of your actual risk. For example, you probably believe there are too many med mal lawsuits – but the truth is you have no idea how many there are, nor do you know how many there should be. Yet you have this “too many” belief nonetheless.

The truth is you’re not going to like ANY dispute resolution system where you have to explain yourself to others, particularly others who may not be physicians. But any dispute resolution system is going to have a fact gathering phase where you’re going to have to explain yourself. And you aren’t going to like that no matter what. I know what it’s like – it’s nerve wracking when you believe you already know all the facts and if people would just listen this would all be over. But you have to accept that you may not have them all, and you may not be right. And that’s tough.

“All this because I drew blood on someone trying to get out of a DUI. ”

Do you have an objection to the defense making sure that you did your job right, and the state is proving its case with the evidence, when the defendant’s liberty is at stake?

“So when I hear the horror stories of my colleagues who have been sued – and the majority of them are for no reason medically other than there was an outcome that was not desired”

There’s always a bad outcome when there is a suit. If there is no bad outcome, there is no case. And you’re right, you KNEW what happened. But maybe the patient didn’t. And so they are doing what the law allows them to do to find out – take a deposition. And maybe, just maybe, they have a different viewpoint than you on what happened. After all, reasonable people can disagree – even though we forget that often these days, and that’s why we have a dispute resolution system.

“Because of this, I understand when someone comes into the ED and we do all sorts of tests to prove what they DON’T have as well as to prove what they do have.”

Do you really? Because the physician is doing all these tests and they have no idea if they have reduced their risk or not with each one. And, evidence shows that even when the physicians get their “reform” that they are seeking, the cost of healthcare doesn’t change. So the evidence seems to say there is some other motivation for all these tests.

” have seen the effects of the unwarranted Med Mal. And yes, I know the orthopedic surgeon who committed suicide due to a Med Mal case filed against him. Knew him, his wife and his 2 young daughters personally.”

I know a woman who had a tubal ligation performed on her without her consent and would never have known why she couldn’t have children if one of the nurse’s conscience hadn’t gotten the better of her. Because it certainly wasn’t in the records that the procedure hadn’t been performed. We can trade sad stories all day, and at the end of the day the sadder ones will be the victims of malpractice. I think it’s terrible the surgeon committed suicide, but do you really believe that was a rational reaction to his situation? To the fact that he would have to answer questions under oath and his insurance company might pay a judgment? The same things that would happen if he’d been in a car wreck?

At the end of the day, though, what are you proposing? If you don’t like our current dispute resolution system – what do you propose we do? How can we go through the fact finding process and determine the outcome in a way that makes you more comfortable and is fair to both sides? Because that’s the issue at the end of the day, when we’re done telling sad stories and saying how the other can’t possibly comprehend.

So, what is your “reform”?

Please tell me Matt that you do not honestly believe that anything you do has the finality or weight of declaring someone dead and having to notify the family…

What is sad is that when I do that, thanks to you and your fellow scumbags, I need to be very careful in what I say, because there is no question on an unexpected death (or even the expected death of a young person) some shyster is going to try and profit off the family’s grief.

Yep, no question about it – What do you call 1000 lawyers at the bottom of the ocean? A GOOD START!

Anyway, a recent study has looked at where the doctors are, and it seems *gasp* that they follow the money:

http://www.reuters.com/article/topNews/idUSTRE5A50EB20091106

“Doctors have been flocking to the area and surrounding Westchester County since the 1970s, drawn in part by an upper-class clientele who demand top-notch medical care and have the means to pay for it. The county has one of the highest median household incomes in the nation (about $77,000 a year in 2007), and the figures soar above six digits in suburbs like Scarsdale and Chappaqua, which former President Bill Clinton calls home.

Nearly 3,000 miles away, scaring up a doctor in Bakersfield, situated in California’s economically battered Central Valley, is a lot harder. In fact, White Plains has more than twice the number of doctors per capita as Bakersfield. . .”

. . .

“That’s because physicians, the data shows, gravitate toward affluent locales in the United States that already have all the medical help they need.

What’s more, the Dartmouth analysis shows, clusters of doctors tend to result in higher health care costs — and, perhaps most surprisingly, outcomes aren’t any better in cities with the largest physician populations.”

. . .

“For every doctor who lives and practices in an underserved area, four others settle in an overserved area, the medical school’s data shows.

There’s an “irrational distribution” of the most valuable and expensive U.S. health care resources and “physicians simply do not settle in greater numbers where patient needs are greater,” said David Goodman, director of health policy research at the Dartmouth Institute for Health Policy and Clinical Practice.

Neonatologists don’t set up practice where the need is greatest, and cardiologists don’t flock to cities with high rates of acute myocardial infarction, Goodman said.

Moreover, Dartmouth’s examination of two decades of U.S. hospital admission data show that more doctors are not necessarily the solution to what ails the U.S. healthcare system. That’s because patients treated in communities with an abundance of doctors are more likely to receive unnecessary tests and procedures, the school found.”

One other interesting thing about Bakersfield and White Plains. California has the most draconian tort reform out there, while New York has none.

How do you not get that fear doesn’t have to be logical when the stakes are as high as they are? I must report every case filed against me, even if it is unfounded and I am released, every time I apply for privileges. Each one is counted negatively and every physician I know has met a locums forced into that position by unsuccessful cases. I know of two colleagues, one of whom committed suicide after a ridiculous case he lost forced him to close his ENT practice, and the other is essentially killing himself through alcohol after he successfully defended himself in a case, but in so doing lost his marriage and lots of money in lost wages during his defense. When these are the stakes, and every reasonable evaluator agrees that up to one third of filed cases have no merit, you really wonder why we, as a profession, resort basically to superstition, fear, and hatred in a desperate attempt to keep the wolves at bay while trying to do a job where all we hope for is the chance to help people?

A simple google search will give you all the legal malpractice lawyers you need. (The “if you’ve taken X medication” ads have little to nothing to do with medical malpractice. So discussing those adds little to this discussion)

Given that the available evidence is that the vast majority of medical malpractice never even sees an insurance claim file, your actions in response to your risk don’t make much sense. Particularly since you can’t tell me if they actually DO reduce your risk.

As for advertising, I don’t agree with all of it. But then, I doubt you agree with all the advertising in your profession. But it’s a free market (even more free in our market than yours) and there are always going to be some things one thinks are in bad taste.

All that said though, if you have a proposal that will change this, by all means let’s see the legislation. So far all I see are caps on cases regardless of legitimacy. Those I oppose. But if you have another proposal, perhaps we can agree.