Senator John Ensign (R-Nevada) lost the vote on his amendment to limit attorneys’ fees in medical malpractice lawsuits. This is a victory for those who may suffer at the hands of doctors’ mistakes.
Senator John Ensign and many of his Republican colleagues had offered an amendment to the current health care bill that would limit or cap attorneys’ fees in the pursuit of collecting damages for medical malpractice. Whether we like attorneys or think of them as sharks, it is worth noting that the cost to litigate medical malpractice is not only an expensive enterprise, it is a gamble.
Most of us in the general public who may have suffered at the hands of a doctor who misdiagnosed a case or may have mutilated a patient cannot afford to litigate the case. In other words, if one among us has become a victim of malpractice without the help of an attorney who accepts the case on a contingency basis no day in court would be available. The amendment offered by Senator John Ensign would have turned the tables clearly in favor of the doctors’ insurance companies.
The truth is in most medical malpractice insurance cases, the victim cannot afford to finance the case. Insurance company attorneys are paid by the hour, win or lose. In most cases the insurance company will drag the case into oblivion forcing the victim into bankruptcy or to just give up and limp away. With the vote down on the amendment, an attorney who may represent the victim in a malpractice case will be more likely to consider taking on the case.
Contrary to what was stated by those in the Senate who wished to cap attorneys’ fees for those few attorneys who may go after a doctor for malpractice, the attorney is not paid by the hour… as are those who are paid to represent the doctors. The attorney accepts the case and prosecutes it based on his belief that he can win the case. Should the attorney for the victim lose the case, he is not paid a penny. In most cases the victim’s attorney is the real loser because of the time and financial backing he has put into the case.
Some in the Senate would have us believe that these malpractice lawsuits are frivolous and brought only by those ambulance chasing attorneys. Nothing could be further from the truth. Attorneys do not accept or prosecute medical malpractice cases without a reasonable belief that the case has merit. It would not be prudent to bring a lawsuit without expectation of a better than average chance of a victory. While winning a case for a client will bring rewards for both the attorney and his clients, it is always a gamble for the attorney. Without contingency fees as determined between the attorney and clients, most of us who have fallen victim to medical malpractice could never afford our day in court.
The Senate vote today sided with the people and gives us the opportunity to have a day in court if it is needed and when justified.
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