Loser Pays in Civil Law Suits

The high costs of medical malpractice suits is blamed for the rising cost of health care. One solution to the problem might be to switch to the loser pays system used in some European countries.

I see formal litigation as an expensive test. I think the confusion comes in because we know that in reality the test is imperfect. As an analogy, imagine a 100,000$ BMW is destroyed. The owner accuses Bob of destroying it. They can determine the answer with 100% certainty by reconstructing a digital videotape that has been corrupted. Because it requires sophisticated technology this will cost $20,000. They pool their money at $10,000 each. The tape shows with 100% certainty that Tom destroyed the car not Bob. Should the owner give Bob his $10,000 back or should he eat that cost? And if the tape shows with 100% certainty that Bob was destroying the car shouldnt he pay the owner 110,000$?