Dear President Obama,
It is admirable that you have decided to do something about the proliferation of frivolous patent lawsuits brought on by so called "patent trolls". These suits cost companies billions of dollars to defend each year and stifle technologic innovation. However, if you could be so kind as to extend your generosity, you will find that medical doctors too face similar litigation from trolls. If you replace the word "patent" with "medical malpractice," you will see that these abusers of the courts are just two sides of the same coin.
For instance, one of your proposals is to indemnify users of a disputed patent. Those tricky lawyers have been going after small businesses and individuals who are unknowingly using products where there is a contested patent. The attorneys figure it is easier to get small settlements from multiple individuals than it is to extract a large reward from a well armed Fortune 500 company. The same problems afflict the medical community. Whenever there is a recall of a defective medical device, the lawyers are out in force suing everybody who has ever laid a finger on the product, from the manufacturer to the hospitals to the physicians who innocently implanted the flawed equipment. We did not design the product. We did not make the product. We did not advertise for the product. Yet if there is a problem, we get a subpena delivered to our offices as we are dragged into another malpractice case. And unfortunately all too often the insurance companies will make a settlement rather than go through a protracted lawsuit. The malpractice troll wins again and lives another day to sue more innocent victims. This doesn't seem fair, does it?
Another one of your ideas to discourage patent trolls is to follow the English rule for collecting attorney fees. In other words, loser pays. That's a plan that physicians have been requesting for years. Most of these trolls, I mean ambulance chasers, I mean medical malpractice attorneys work on a contingency basis. They don't have much to lose by litigating knowing that they only have to pay their own expenses if they fail in court but hope to collect so much more from the defendants if they should prevail. Under the English rule, the winning defendants can demand that the plaintiffs pay all legal costs of both sides, thus putting a little more pressure on trolls to bring justifiable cases to court. If the administration can see the logic of protecting the technology business from frivolous lawsuits by imposing the English rule, doesn't it make sense to do the same for the health care industry which makes up 17% of the country's GDP?
So please President Obama, you haven't shown much love to the doctors who are going to be at the vanguard of the millions of new patients you have shoehorned into the Affordable Care Act. Your legacy with the ACA will live or die by how well we treat all those people in our overcrowded and overbooked offices and hospital beds. However, if you expand your protection of innocent victims to include medical malpractice defendants, I think there is a good chance you will be under the good graces of the medical community again.
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