‘Loser Pays' is a winning cure

We have all seen the ads on television. As an announcer intones, 'If you think you've been hurt by a doctor, hospital or medication, call me now,' a serious lawyer and his or her phone number appear on the screen. Then the lawyer offers to 'get you the money you deserve.'

The ads seem innocuous enough. But like well-seasoned kindling, they are highly inflammatory, igniting dissatisfaction over a real or imagined slight into a full-blown wildfire of legal action against health care providers.

And that's a problem. Even in America's litigious society, health care providers seem to have an especially large target on their backs for lawsuits. Protecting themselves against such suits has led to the practice of something called 'defensive medicine,' which in turn has added unnecessary, wasteful expense to a U.S. health care system estimated at $700 billion to $1 trillion annually. Although hard to quantify, some experts place the yearly cost of defensive medicine at $100 billion to $200 billion.

A recent survey on defensive medicine was completed by more than 900 physicians, with about 83 percent responding that they do practice defensive medicine. The cost for imaging services alone, such as X-rays and CT scans can cost thousands of dollars depending on the type of the study. Many of these are done to prevent the possibility of lawsuits. Roper St. Francis will do over 50,000 CT scans a year, and if just a fraction of those scans are eliminated, the savings would be significant.

With 65 acute care hospitals in our state, it's easy to see how the cost of defensive medicine quickly adds up into billions. And it's also easy to see how this unnecessary cost, which must be paid by someone, ends up costing all of us money in the form of higher physician and hospital bills and higher insurance premiums. Just think what would happen if the money directed to defensive medicine went to cover the uninsured instead.

So why isn't defensive medicine, and more importantly limiting the practice of defensive medicine, a major part of America's health care reform debate? Well, it is and it isn't. Right now, it's more of a whisper, but a growing number of concerned citizens are raising their voices and offering a solution called Loser Pays.

Also known as the 'English rule' system, Loser Pays forces losers in lawsuits to pay the winner's legal expenses. Loser Pays also helps reduce litigation costs, discourages meritless lawsuits and better aligns laws with the goal of deterring socially harmful conduct. It is no coincidence that countries around the world with Loser Pays systems pay far less for health care than we do.

We already have a form of Loser Pays and that's automobile liability insurance. If an accident is your fault, you pay. We've all learned to live with it. So why not adopt loser pays for health care?

A growing number of people see the logic. Sen. Lindsey Graham supports a form of Loser Pays. Many attorneys support a system of Loser Pays. The largest barrier to this approach to health care lawsuits is trial lawyer groups. This lobby has huge influence over our state and national politics and our pocketbooks.

Please understand that physicians and hospitals are not trying to avoid responsibility for mistakes. On the contrary, the South Carolina Hospital Association, its member hospitals, physicians, and numerous other partners are working together on a statewide initiative called Every Patient Counts to improve health care quality and eliminate unintentional errors. Some of our hospitals have a policy called Sorry Works that involves informing patients when a harmful mistake is made, and patients and family members welcome this honesty. It also helps reinforce the trust that is so necessary between patient and provider.

We all agree our health care system can be improved. However, reform must include all aspects of the system, particularly those that involve waste, inefficiency and unnecessary costs. Defensive medicine certainly falls into that category.

Loser Pays is a concept the rest of the world has embraced. Why not South Carolina? Why not America? If you want it included in the national health care debate, contact your state and federal representatives. Tell them that Loser Pays must be a part of health care reform.

David L. Dunlap, president and CEO of Roper St. Francis Healthcare, is chairman elect of the S.C. Hospital Association.