Graham sponsors ‘loser pays’ medical malpractice bill

Staff Report
Published Nov. 3, 2009

U.S. Sen. Lindsey Graham, R-S.C., introduced legislation Monday that would require losing plaintiffs in medical malpractice lawsuits to pay legal costs for both sides.

The so-called “loser pays” bill, which Graham and U.S. Sen. Saxby Chambliss, R-Ga., sponsored, is meant to reduce the number of frivolous medical malpractice lawsuits, the senators said.

As the nation debates health care reform, some say health care and insurance cost are unnecessarily inflated by physicians who feel pressured to perform unnecessary tests or practice “defensive medicine” out of fear of lawsuits. Proponents of tort reform also say the cost of physicians’ malpractice insurance drives up medical costs.

“Reform of medical malpractice is one of the key missing ingredients from the health care reform proposals being debated in Congress,” Graham said in a statement. 

“When both parties in a lawsuit are subject to financial penalty, people think longer and harder about bringing a questionable case forward,” he said.

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The bill, called the Fair Resolution of Medical Liability Disputes Act of 2009, would require preliminary, nonbinding arbitration for medical malpractice claims before they go to court. 

If one or both of the parties rejects the arbiter’s decision, the claim can be taken to court. But, in doing so, the party would fall under the loser-pays rule.

If the court judgment is less favorable than the arbiter’s decision for the party that rejected it, the rejecting party pays the opposing party’s attorney fees from the date of the arbiter’s decision, unless the court finds that the requirement would be unjust.

States could create their own alternative dispute resolution system.

The new system would apply only to doctors who count Medicare patients as at least 25% of their total patients.

“While no one with a valid claim for medical malpractice should be denied his day in court, those who bring frivolous lawsuits raise the cost of health care for everyone,” Chambliss said in a statement. “‘Loser pays’ should go a long way toward discouraging such junk lawsuits and lowering the cost of practicing medicine.”

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Added: 3 Nov 2009

This column is very strange. There is only an opportunity to say that you give the article "A thumbs up"..... There is no opportunity for a reader to give the article a thumbs down...... That is bogus. WE GIVE THE ARTICLE AND GRAHAM'S IDEA FOR A "LOSER PAYS" LITIGATION REFORM A... THUMBS DOWN!!!


Added: 3 Nov 2009

This means a person whose medical professional has failed to follow the medically accepted standards of care leaving the patient severely damaged now must negotiate away his case under threat of having to pay legal costs in the event such injured party fails to win in court. If we can do this in one class of lititgation (medical malpractice) then why not should change our American jurisprudence system to require a losing party to always pays legal costs of winning party in all lawsuits--auto accidents, land disputes and so on ? (Is Lindsay catering to insurance carriers for just Univeral Health Care hysteria ? ) Medical malpractice litigation usually involve high legal costs for all sides. Cases are seldom brought without careful review of the facts and law and consideration of costs involved. Some cases may be frivolous, but this is rare. Most cases without a high probability of success are set aside and not brought upon the advice of counsel. Lawyers serve a vital part justice system by "weeding out" cases which should not be brought to court. Senator Lindsay Graham will not find many experienced medical professionals or hospital administrators who do not recognize that even medical cases lost by malpractice patients often lead to changes procedures and processes for greater patient safety.

John Bleecker

Added: 4 Nov 2009

Today's medical professional liability system is too adversarial and too expensive. There are alternatives. More at

Jeremy Engdahl-Johnson