Family Physician Delegates Debate “Loser Pays” Medical Malpractice Tort Reform

The American Academy of Family Physicians (AAFP) recently hosted a 2017 Congress of Delegates where one topic which was proposed and debated was “loser pays” litigation reform. Proponents think this design would help deter frivolous suits by requiring the losing party to pay the legal fees for the victorious party. Most recent discussions regarding medical malpractice reform have centered on caps (limits) on awards for damages. The Academy is seeking support from hospital trade organizations, local medical societies and other related groups. 

Kevin Wong, a Pennsylvania doctor, explained that the “loser pays” approach is among the possibilities that could help improve the malpractice environment. Wong stated that Pennsylvania’s physicians face a higher likelihood of being sued due to a requirement to maintain $1 million in medical liability coverage. He explained that many other states don’t have such high minimum requirements, which makes the “playing field” uneven from state-to-state. 

In addition, Wong says that medically-related expenses are able to added, which can increase awards for pain and suffering even if someone’s insurance has already paid for them. Data reflects that 80% of Pennsylvania malpractice cases that get to court are won by the medical provider.

Adam Schaffer, a Massachusetts physician, noted that the rate of paid malpractice claims has fallen, yet the value of the average claim has risen. Kristi VanDerKolk, a Michigan physician, opposes the “loser pays” proposal because she fears it would prevent those victims who have limited resources from bringing claims. Bruce M. LeClair, a Georgia physician, thinks that the plaintiff’s attorney should be the one liable for the potential attorney fees if the case is not successful. Wayne Strouse, a New York physician, concurred with LeClair in holding plaintiff attorneys responsible.

A recent survey by Medscape indicated that by 54 years of age, doctors have a 64% chance of being faced with a malpractice suit; this percentage rises to 80% for those who reach 60 years of age. Primary care physicians (as a whole) have roughly a 46% chance of facing a suit. The American Medical Association says that $100,000 is the average cost of defense in a claim that proceeds to trial. Those settled or dropped prior to trial still average in excess of $20,000. Medical malpractice actions are traditionally lengthy with this breakdown:

• 36% of cases are concluded in one or two years
• 33% of cases are concluded in three to five years
• 12% last beyond five years

Physicians are often forced to anxiously await the outcome of claims which could impact their license and certification for these long time periods. Some family practitioners admit to intentionally limiting the scope of their work based on a fear of litigation. Those doctors in small specialty practices have the highest risk of facing a medical malpractice suit.