Chambliss, Graham propose lawsuit reform as part of health care overhaul

By Bob Keefe

The Atlanta Journal-Constitution

WASHINGTON -- Addressing what he says is a major shortfall in congressional Democrats' plans for a health care overhaul, Republican U.S. Sen. Saxby Chambliss of Georgia is co-sponsoring legislation he says would cut down on frivolous malpractice lawsuits that are often blamed for helping drive up health care costs.

Inclusion of such a proposal in any health care legislation could potentially win over Republican votes in Congress. Many Republicans have said they won't vote for a health care overhaul unless it addresses tort reform.

President Barack Obama and other top Democrats agree that medical malpractice litigation is part of the problem behind high health care costs, but they have suggested that it should be up to individual states to experiment with how to deal with the issue. The proposal by Chambliss and Sen. Lindsey Graham, a South Carolina Republican, would reach much further and as a result isn't expected to get much support from Democrats.

The so-called "loser pays" legislation introduced by Chambliss and Graham would require parties in medical malpractice claims to enter nonbinding arbitration to try to resolve disagreements.

If one or both of the parties reject an arbitrator's decision, they could take the claim to court. But the losing party would be required to pay its opponents' legal fees, which could be in the hundreds of thousands of dollars.

"While no one with a valid claim for medical malpractice should be denied his day in court, those who bring frivolous lawsuits raise the cost of health care for everyone," Chambliss said in a statement. "Loser pays' should go a long way toward discouraging such junk lawsuits and lowering the cost of practicing medicine."

A recent report by the Manhattan Institute, a conservative public policy group, predicted that "loser pays" laws like those in other countries could significantly reduce frivolous lawsuits of all kinds.

Yet opponents say that's just not the case -- or the problem with health care.

According to the left-leaning advocacy group Public Citizen, malpractice litigation costs represent less than 1 percent of the total cost of health care in America.

"This is worse than bad, it's really ridiculous," David Arkush, director of Public Citizen's Congress Watch division, said of Chambliss and Graham's proposal.

Arkush said that medical malpractice litigation costs have actually declined in recent years and are at an all-time low, despite the fact that overall health care costs continue to rise.

Attorney Robert Peck said the senators' proposal isn't just unnecessary, it's dangerous for patients.

"It's not going to solve any problems," said Peck, president of a Washington, D.C., law firm called the Center for Constitutional Litigation. "But it will significantly destroy the access to the courts for patients injured by the negligence of their health care providers."