12.06.09

Statement Regarding Amendment To Cap Attorney Fees In Medical Malpractice Cases

We will soon be voting on a one-sided amendment that will hurt injured Americans who seek to recover damages in our court system.  It may not be obvious to the non-lawyers listening to this debate that many ordinary Americans who suffer an injury through another’s negligence cannot afford to pay an attorney up front.  Our legal system allows for a plaintiff and an attorney to negotiate to determine compensation.  In these cases, the parties sign a contract where the attorney may agree to work on a case with no compensation at all, unless the victim ultimately receives compensation from the doctor or hospital responsible for the injury.  This is called a contingency fee. This system encourages attorneys to take only meritorious cases, but more importantly, it allows all Americans – not only the wealthy – to have their day in court.  Because of contingency fees, most injured patients do not need to pay their counsel up front or on an hourly basis.  This type of arrangement makes good representation available to a broader segment of the population, and levels the playing field between ordinary citizens and more powerful interests in society.

It should also be noted that if a judge believes that a compensation agreement is unfair to the victim or disproportionate, the judge has the power to reduce the fee.  States have regulated the area of attorney compensation extensively, striving for reasonableness overall.  And let us not forget that an attorney is only compensated under such an arrangement if the client’s case is successful, and a jury finds that a wrong was committed.  An attorney’s compensation for advocating fiercely for a client to remedy an injustice is not a windfall; it is the result of hard work.  The pending amendment would override all of these traditional considerations, and instead would impose a flat cap on all attorney fees for significant injuries.

But this amendment would not cap the attorney fees of those representing negligent hospitals or doctors.  It would not cap the attorney fees that could be recovered for those who represent insurance companies.  This is not fair play, and such a one-sided restriction gives a defendant every incentive to prolong litigation and increase the financial risk to a plaintiff’s attorney.  It will only make it more difficult for every-day Americans, who as patients suffered severe medical injuries, to obtain good representation.

When a patient receives more than $150,000 in medical expenses or compensatory or other damages it is because that injury is severe and on-going, or because it resulted in death.  Those patients  -- thousands each year -- will have a tougher time finding someone to hold the person who harmed them accountable.  Adding this insult to injury does not further the laudable goals of the pending health care bill.  We should be increasing patient safety and health.  Not punishing only those who are already injured by wrong-doing.

I understand that yesterday the junior senator from Nevada identified several prominent Democrats  as having supported a similar amendment, authored by Senator Kennedy, a decade ago, in a Republican-controlled Senate.   I am not surprised by this tactic, given the disappointing tenor of this debate.  Of course, upon review of the actual vote, anyone would see that several of Senators in this chamber, including this one, opposed a motion to table Senator Kennedy’s amendment.  That is hardly the same as advocating for a cap on fees.  It is also worth noting that in 1995, the Senate was considering a draconian products liability bill, not a health care bill.  At that time, the Republican majority was attempting to go further than any other Congress to prevent injured Americans from recovering damages from the corporations who hurt them or their children.   I am relieved that the Republican legislation in 1995 never became law. In light of the many recent instances of harmful products that have been introduced into commerce—many of them toys for children—had that bill become law, I fear we would have seen many more deaths or serious injuries among children as a result of faulty products.

I find it ironic that given the often-professed loyalty to the sovereignty of the States and the sanctity of the private contract, many on the other side of the aisle seem to have no concerns about the vast Federal intrusion into these areas of traditional State control that this and other medical malpractice reform proposals represent.  I will oppose the amendment offered by Senator Ensign.  It is unfair, and will only hurt Americans who have already been injured by making it more difficult for them to gain access to our court system.

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