The US Senate voted down yesterday a proposal to limit plaintiff attorneys’ fees in medical malpractice cases to 25% of the verdict or settlement. Virginia’s US Senator John Warner, however, voted in favor of the legislation.
The legislation, introduced by US Senator John Ensign (R-NY), is a thinly disguised effort to curtail the number of medical malpractice cases and to discourage plaintiff’s lawyers from accepting such claims. What would the net effect be of such action? Patients who have suffered injury at the hands of negligent physicians and who are often disabled and already at grave financial hardship, might be forced to pursue justice by paying their attorneys hourly and advancing the significant costs of the suit. The truth is those patients will be unable to afford to bring the lawsuit.
So who wins? Not the people. Not the patients. And it is not really the doctors who win. The victors here are the insurance companies who will avoid paying out deserved compensation to victims of malpractice.
A medical malpractice case is often extremely complicated, involving significant research and expert opinion, which amounts to tens of thousands of dollars. As it is highly specialized and requires the attorney to pay many expenses upfront, only a small percentage of the plaintiff’s bar does this work.
Will this legislation discourage so-called “frivolous lawsuits?” Under the contingency fee system, if the plaintiff receives no compensation the attorney receives nothing. Such a system promotes efficiency and discourages frivolous lawsuits. No reasonable attorney can afford to take questionable, much less frivolous, lawsuits and advance thousands of dollars when compensation is dependent upon the outcome. When the lawyer bears the brunt of the financial risk associated with a medical malpractice lawsuit, he becomes the gatekeeper over meritorious claims.
While legislation limiting attorney’s fees that can be charged the victims of medical malpractice is disguised as action against lawyers–it is nothing less than action designed to deter victims from receiving just compensation for the harms they suffered from the hands of careless health care professionals.