What are you talking about? You already have a massive lobbying arm in the AMA, it’s just not very effective. No one is going to lose respect for you if you lobby for higher Medicare reimbursements. You’re already bitching about it incessantly as a profession, what do you have to lose by actually trying to change it?

“Then link me something,”

Do your own research Google any state’s statutes and then search within them for “offer of judgment”. It essentially works like this: A defendant or plaintiff can make an offer, and if the other side rejects the offer and continues with the case and the ultimate verdict is not within x% of the offer, either high side or low side depending on the party, then the party who offered pays the costs.

“Then all successful physicain will plan a countersuit at the drop of a hat (about 75% of them).”

You’re equating a losing case with a frivolous case. Every case has a loser, but that doesn’t mean every case is frivolous.

“the plaintiff s lawyer will search for someone to agree.”

And you know this from your extensive experience within a law office? Have you ever even spoken with a plaintiff’s lawyer regarding how they select their cases? Or are you reading minds?

“Difficult, but nonetheless possible.”

Absolutely – so propose it legislatively.

“What is that ?”

Berkshirehathaway.com. Letter to Shareholders, February ‘05. Insurance part starts on about 3rd page I think.

Who said so . I am all for it. But many actions that seems quite natural for other people , are not tenable for us ‘cause you lose public support very soon. And it does cause “harm” in the short term. So the answer is still blowing in the wind.

“I’ll tell you again, though – almost every state in the Union already has a version of loser pays.”

Then link me something,

“You must be drinking with this statement. I know plenty of lawyers who, if there are sufficient damages, will take a contingency fee case against another lawyer”

Then all successful physicain will plan a countersuit at the drop of a hat (about 75% of them) . Doesn’t seem to happen.

“There is no room for honest disagreement on, say, the standard of care? Have you never had a disagreement w/ another physician on proper care?”

Oh my God. Those honest disagreeing physicians don’t debate with me in the court room costing my time and money. And if there are so much of honest disagreement
Some Expert witness will agree and some won’t .the plaintiff s lawyer will search for someone to agree. Then we all have honest agreements and disagreements, and medicine will go to hell. If medicine is so subjective a thing, it should have been immune to law suits.

“A tax on doctor’s earnings and patients earnings to pay for physicians’ negligence?”

Why not? if physician is not negligent patient will have his own share and in a case of negligence’ pt would have both. That’s better than applying for medical bankruptcy because this system won’t give a dime, if he can’t prove. You can make it more interesting if some tax from the lawyer’s income can enrich this pool, if they chose to represent the plaintiffs. No contingency fee just standard hourly fees. Difficult, but nonetheless possible.

“I think it’s also pretty clear you have no concept of how insurers work. Seriously, read the Buffett letter to get a start.”

What is that ?

Stop the madness with this nonsense. Physicians have no problem hopping into bed with insurance companies to make a buck, or suing them to make another. All the sudden you’ve got an aversion to lobbying for your bottom line? How sweet.

“Chutzpah once again. My dear friend just follow this link and educate yourself . It will take a good no. of posts to sum up what is given here.”

Your link doesn’t explain how the current system of loser pays work. I think I’ve pretty clearly illustrated that you don’t know what you’re talking about on this issue, whether it’s in this country or abroad. I’ll tell you again, though – almost every state in the Union already has a version of loser pays.

But hey, you’ve read Overlawyered so you have the insurer’s position down. You’re halfway to understanding.

“no lawyer will work on contingency fee especially against another lawyer.”

You must be drinking with this statement. I know plenty of lawyers who, if there are sufficient damages, will take a contingency fee case against another lawyer.

“But these are for compensating actual victims, not for defending false claims”

So then a claim must always be false or true, correct? There is no room for honest disagreement on, say, the standard of care? Have you never had a disagreement w/ another physician on proper care?

“a rational approach should be to share the burden between Doctors and their patients ,from a common pool.”

What are you proposing here? A tax on doctors earnings and patients earnings to pay for physicians’ negligence?

“If an insurer has to analyze the risk of bogus claims then the gaming of the system is in full swing.”

I think it’s also pretty clear you have no concept of how insurers work. Seriously, read the Buffett letter to get a start.

Be it physicians themselves or any people they hire, even the idea of lobbying, collective bargaining and not to mention industrial action flies off in the face of the hard core ethics the medical school tries to drill in their students. This imposed altruism is a perfect recipe for disaster .The ivory tower of medical ethics is so high; the sound never reaches the ordinary physician like us. it dies down in the middle. Training is a mindset that medical schools failed to impart in the changing world

That is the point.

“I bet you can’t even tell me what we have here, much less how it works in Europe”

Chutzpah once again. My dear friend just follow this link and educate yourself . It will take a good no. of posts to sum up what is given here.

http://www.overlawyered.com/loser_pays/

“Do you really believe every defendant who is sued did absolutely nothing? That literally every case is frivolous?”

If you believe the jury system then without second-guessing, a person exonerated did absolutely nothing. Out of this A fraction is definitely frivolous.. The suspicion rises when the rate of exoneration is rising up to 75-80 %. To prove it is frivolous a physician has to counter-sue, which are rarely allowed to proceed (I’ve heard only a couple of successful ones), and expenses are not borne by insurance (except by some phony Medical Justice), and no lawyer will work on contingency fee especially against another lawyer. So to legally prove the case was frivolous is more difficult than to prove malpractice.

“So if you had loser pays you wouldn’t carry insurance? Do you really believe you are incapable of negligence of any form? Impressive!”

You’re putting your words in my mouth. Mishaps happen and so there is the insurance .
But these are for compensating actual victims, not for defending false claims Since mistake is inevitable , a rational approach should be to share the burden between Doctors and their patients ,from a common pool . Loser pays doesn’t eliminate insurance, just streamline that and make it realistic.

“Do you not think the insurer analyzed the risk? Do you even know how much your premiums went up as a direct result of that cost?”

If an insurer has to analyze the risk of bogus claims then the gaming of the system is in full swing. It sounds more like Vito Corleoni making an offer the company can’t refuse and will go on coughing out protection money so a crack-pot lawyer can play jackpot

“”Your can of worms still open.”

The analogy died a couple of posts ago”

You buried it ,but the stench is reprehensible

They don’t have to be trained in it. They simply need to hire the people who are. That’s what every other group does.

“There is a reason it cost hundreds of thousands of dollars to go to law school.”

It doesn’t cost hundreds of thousands at most state schools.

“There is a reason very few people actually understand the minutia of most court cases- even those involving simple Subjects.”

Yeah, because they’ve never read them. How many actual cases on, say, a contracts dispute between a homeowner and builder have you ever read and could not understand? I’d venture to say none, because you’ve never read any. You’re just assuming.

“What is the downside of bringing the lawsuit for the plaintiff?”

Depends on the case. The expense, the time involved, etc. If it’s a contingency fee case, it’s the lawyer who has the downside.

“No state has it in the European style and what is there is an eye wash.”

I bet you can’t even tell me what we have here, much less how it works in Europe. In fact, I’m almost certain that you’ve not looked at one statute from any country in Europe, much less any state in America, which explains it.

“And when I’m the defendant and I win I give a shit where your money comes from plaintiffs or lawyers ‘cause you dragged me to court for no reason.”

Do you really believe every defendant who is sued did absolutely nothing? That literally every case is frivolous? I’m sure those health insurers who were sued by 900,000 physicians would agree with you.

” May be he wouldn’t work that hard or use it for his own (nothing selfish about it) rather than squander it on your whims.”

So if you had loser pays you wouldn’t carry insurance? Do you really believe you are incapable of negligence of any form? Impressive!

“Defending even a bogus case cost my insurer money that is passed on everybody, artificially raising premiums.”

Why is it artificial? Do you not think the insurer analyzed the risk? Do you even know how much your premiums went up as a direct result of that cost? I’d bet you have literally no clue as to how your premiums are determined.

“Your can of worms still open.”

The analogy died a couple of posts ago.

These are for venting day to day frustration and have a sense of bonding like another worker in a high-risk job. Leverage for negotiation only comes from lobbying,collective bargaining and lastly the notorious industrial action stance. Physicians are poor in those ‘because they aren’t trained. I don’t see medical schools waking up to reality in near future.

“All services cost money, including legal services.”

And the unique thing is that it is mandated by the government. There is a reason it cost hundreds of thousands of dollars to go to law school. There is a reason our legal statutes are the size of libraries (but constitution is only few pages long). There is a reason very few people actually understand the minutia of most court cases- even those involving simple Subjects.

The complexity of laws and legal proceedings keep lawyers in business. Although I’m not a conspiracy theorist but it seems the whole system was devised to benefit the lawyers, mandated by government. So probably what is needed is a somewhat DEMYSTIFICATION and DE-COMPLEXIFICATION OF LAW

“This statement lacks a factual basis”

What is the downside of bringing the lawsuit for the plaintiff?

“The power of the individual citizen is what defines the free market “

Then common sense tells us that it is to be extended to both the parties in a lawsuit, if fairness isn’t a hollow word. if a rule is allowed to be a precedent, to line some one’s pocket (govt. mandated remember) and making the defendant eat humble pie, is not a free market, if not a scary conspiracy.

“Almost every state does have a version of loser pays”

No state has it in the European style and what is there is an eye wash. And when I’m the defendant and I win I give a shit where your money comes from plaintiffs or lawyers ‘cause you dragged me to court for no reason.

“The other problem with your logic is that we have already paid for the defense in the terms of premiums for our insurance. The insurer understood this risk and weighed it against the profit potential of utilizing your premium in the interim when it set the price and collected your money.”

That big premium came from a physicians sweat and labor and extra hours of work. May be he wouldn’t work that hard or use it for his own (nothing selfish about it) rather than squander it on your whims. Defending even a bogus case cost my insurer money that is passed on everybody, artificially raising premiums. Not with tort reform but with a proper loser pay system premiums can go down significantly

Your can of worms still open.

And yet physicians are doing it already – plenty of blogs on the subject. If you aren’t, it’s because you choose not to.

” The end result is that there is no way for a victim to resolve legal conflicts and get justice other than using the lawyers,now so much of them, and the industry itself can only sustain itself
with money not paid to victims.”

If you can think of a cheaper way to get responsible parties to pay for their damages, I’d love to hear it. All services cost money, including legal services.

“In addition one of the dirty little secrets of the American legal system is that anyone who feels wronged, or wants to feel wronged, for any reason, is protected from any risks you might think exist in bringing a lawsuit against another individual or company.”

This statement lacks a factual basis.

“It’s a scary amount of unchecked power the average citizen has – this is not free market”

The power of the individual citizen is what defines the free market, my friend.

“This notion that a losing plaintiff never has to pay flies in the face of the entire concept of a justice procedure which supposedly can assess a monetary loss caused by any action, and if necessary, require an offending party to compensate the “victimized” party for that loss.”

Ahh, I see the problem – you don’t understand the economics of the plaintiff’s case – someone does pay – namely the lawyer. And in business torts, the plaintiff themselves. So it is not by any stretch of the imagination (beyond small claims court) a free shot. What’s more, almost every state does have a version of loser pays.

The other problem with your logic is that we have already paid for the defense in the terms of premiums for our insurance. The insurer understood this risk and weighed it against the profit potential of utilizing your premium in the interim when it set the price and collected your money.

Most of the awards in law, be it contracts, tort, individual or corporate parties, are about burden shifting. Rarely is their a net benefit. Take your average malpractice case – the bulk of the award ends up in the hands of medical providers or the plaintiff’s insurer. Another large chunk will reimburse the plaintiff for lost wages. These are all costs that would be incurred regardless to society, we are just putting them on the responsible party.

The only can of worms we’ve opened up is an illustration of your lack of knowledge of how the law and the legal system work. Exactly how many trials have you observed? How many cases have you been involved in?

Free market is nostalgia for a physician who could charge the way he/she liked and let the market decide that. They are presently tied with rims of paperwork to satisfy a faceless bureaucrat; their reimbursements are slashed and go down year after year and with no leverage for negotiation. If this your handsome reward and the idea of free market for a physician is, Adam Smith must be spinning in his grave.

Efficiencies of a free-market is well-known and if it works in any sphere so it is medicine, so is law . The problem, however, is that unlike computer industry or the health care industry government mandates the existence of your legal industry. That’s why it neither has competition, nor fear of drying up and go away.

For starters, there is little benefit to your legal industry to ensure that rewards- which, again, are supposed to make things even, actually find their way to victims. You can debate the specific numbers all day long- amount of work involved in bringing a case,where real dollars actually split in real cases, and the reasoning behind all of these things. The end result is that there is no way for
a victim to resolve legal conflicts and get justice other than using the lawyers,now so much of them, and the industry itself can only sustain itself
with money not paid to victims.

This imbalance, in turn, causes law to be used as a weapon- a first line of defense- more often than a last-resort reaction

In addition one of the dirty little secrets of the American legal system is that anyone who feels wronged, or wants to feel wronged, for any reason, is protected from any risks you might think exist in bringing a lawsuit against another individual or company.

So considering our ‘nation of victims’, there are very few situations in which a particularly vengeful person can’t find something to sue for. Sure, such cases may be thrown out fairly quickly- but that’s not the point. The point is you vindicated yourself by forcing your ‘enemy’ to part with quite a bit of money. It’s a scary amount of unchecked power the average citizen has – this is not free market

If it is that impossible for our legal system to operate not as a money-making industry, but somehow outside of the free market, then the next-best solution would be to “check” it with the risks and rewards of the free market itself.

In a sense legal industry could be seen as an industry with standard “no risk, money back guarantee.” marketing practice The only differentiator here is who sues who- you only get the no risk guarantee if you decide to sue first Are we just inspiring people to be victims and file suits over more risky free-market based methods This notion that a losing plaintiff never has to pay flies in the face of the entire concept of a justice procedure which supposedly can
assess a monetary loss caused by any action, and if necessary, require an offending party to compensate the “victimized” party for that loss.

If someone cannot possibly stamp a physician or any body a victim of a wrongful lawsuit- which is essentially what the legal system is saying- then how can we consider people who suffer property damage, damage to a reputation, or other such things victims who deserve retribution? What is the difference?

If you ever want the legal system to play in the free market, then the only way to ensure its done fairly is if the same concepts of shared risk are allowed to remain. Bring a lawsuit, be prepared to suffer the consequences of, frankly, wasting everyone’s time.

See how talking about free market opens up your can of worms.