One post describes a lawsuit in which a plaintiff alleged that her deceased husband had been "improperly diagnosed" with small cell lung cancer due to a "contaminated" tissue sample. The defendant hospital noted that such a theory would have required that "someone would have had to actually have lung tissue containing the cancer cells on his fingertips while when he handled the sample," a likelihood of "1 in 1.09 quintillion." As MedPundit notes, "The jury ruled in favor of the hospital, but the case took four years and several hundreds of thousands of dollars to defend. That's OK with Mrs. Brown, because now she knows 'the truth.'" Would she have felt that way if she'd had to foot the defense's legal bills? Sounds like a compelling argument for loser pays to me...
Also buttressing the case for loser pays reforms is MedPundit's example of doctors being added to suits without any due diligence on the part of plaintiffs' attorneys to the alleged misconduct: in her anecdote, the doctor in question hadn't even been at the hospital for one and a half years at the time the alleged incident occurred.
Does such madness have costs? You bet it does. MedPundit cites the 2003 American College of Obstetricians and Gynecologists Survey on Medical Liability, which shows that "12.5 percent of OB/GYNs in Pennsylvania have stopped practicing OB and 57.5 percent have made some change in their practice because of issues with affordability or availability of liability coverage, including relocating, retiring, dropping OB, reducing number of deliveries, reducing amount of high-risk OB care, or reducing gynecological surgical procedures."
And despite the claims of some defenders of the status quo, the nonpartisan Congressional Budget Office finds that noneconomic damage caps do indeed help contain medical care costs without compromising patient care.
Interesting stuff, all. Keep tuned to overlawyered all week for more on medicine and the law.