Marcia Frellick

September 20, 2017

SAN ANTONIO, Texas — Members of the American Academy of Family Physicians (AAFP) 2017 Congress of Delegates this week debated a proposal for "loser pays" tort reform, designed to discourage frivolous and costly lawsuits by making the losing party responsible for the winner's legal fees.

The approach takes a path different from the more common pursuit of malpractice caps.

Delegates proposed that the AAFP support the reform for malpractice and personal liability cases so that the losers of lawsuits would be liable for the winner's fees up to a cap determined by legislation.

The resolution also asked that the Academy collaborate with other medical societies, hospital associations and other decision-makers to pursue loser-pays reform.

The sponsoring delegation emphasized that it's important that this falls not solely on the plaintiff but on the plaintiff's attorney as well.

On Wednesday, the legislation was referred to the AAFP board.

Kevin Wong, MD, a delegate from Pennsylvania, told Medscape Medical News that something has to change, but "loser pays" is not necessarily the way to go.

Currently, liability rules and regulation differ widely by state, he pointed out, noting there has to be a leveling of the field in terms of risk.

"The risk of being sued in Pennsylvania is much higher because of rules like we have to have $1 million in liability insurance. Other states don't require a minimum amount, therefore a suit would have to be filed and a lot more work done before a plaintiff's attorney would find out if or how much insurance you carry."

He added that in Pennsylvania, "any medical expenses are allowed to be added to damages to be used for increasing pain and suffering awards even if they were paid by insurance already," which, he explained, is different in other states.

Something must be done to eliminate "nuisance" lawsuits. As evidence that such lawsuits are a common problem, he points to the high rate of court decisions that find in the physician's favor. "Eighty percent of the medical liability cases in Pennsylvania that go to court are won by the physician or hospital," he said.

A study  this year by Adam C. Schaffer, MD, a hospitalist at Brigham and Women's in Boston, Massachusetts, found that while the rate of paid claims against physicians dropped by more than half between 1992 and 2014, the average claim payment amount rose.

Kristi VanDerKolk, MD, an alternate delegate from Michigan, speaking for member constituencies, spoke out against the proposal. "Our fear is that marginalized populations who truly may have been harmed will be dissuaded from moving forward with lawsuits knowing that they would be liable for the cost of that lawsuit and surely can't afford it."

Bruce M. LeClair, MD, a delegate from Georgia, said he also feels this would put an undue burden on the plaintiff and said he would change the wording so that the plaintiff's attorney is liable for the costs, not jointly with the patient.

"The attorney is responsible for giving good advice to the client and therefore they should be responsible for legal fees in case of a loss," he said.

American Academy of Family Physicians (AAFP) 2017 Congress of Delegates

No relevant financial relationships have been disclosed.


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