There is no shortage of the problems that plague health care. Even so, health law gurus make problems worse by creating the medical liability litigation industry. Gurus deny creating this industry. They create health reforms and tort reforms to solve problems. That explains the Affordable Care Act, 100 tort reforms, the medical liability litigation industry, and difficulties.
Have you been sued for medical malpractice? If not, you will be. There are 50,000 medical malpractice lawsuits per year, and you are one of a million doctors. Therefore, your risk is 5% per year. Seventy percent of lawsuits are frivolous. Since every malicious lawsuit is frivolous, the odds are good that, so too, is the one against you.
Every malpractice lawsuit is predicated on a complication. Indeed, some are medical errors. But there are also errors of nature and even fabrications. You are not immune from complications. Nevertheless, according to gurus, all are medical errors until proven otherwise.
At trial, the burden of proof is a preponderance of evidence. It has been around since the Magna Carta in 1215. It corresponds to 50% confidence plus a scintilla. “Scintilla” is subjective and can be any value. When the bar is low, depending on the value of scintilla, the risk of a wrong decision could be as high as 49%. Essentially, this is a coin toss.
You pay thousands of dollars to a medical malpractice insurance carrier to defend yourself from this risk. If you are sued, it pays for everything. Codified in the cooperation clause of your policy is the mantra: Don’t worry — your defense will cost you nothing. Be happy — just cooperate with whatever your carrier and your attorney advise. Hence, the carrier has more influence over the attorney and defense strategy than you do.
No one could know better about the status quo than a physician who has been sued.
The paradigm shift
For this reason, I developed a risk management tool. It adapts a lawsuit to the scientific method. The scientific method has been around since Sir Francis Bacon in 1620. It establishes 5 steps to test a null hypothesis. In any malpractice lawsuit, the null hypothesis is the treatment in question is the standard of care. The burden of proof is still a preponderance of evidence. However, in the tool, scintilla is objective, always 45%. Hence, the null hypothesis is either accepted or rejected with 95% confidence, and the risk of erroneously rejecting a true null hypothesis is only 5%.
This is no longer a coin toss. Not only does the tool raise the bar, it is completely consistent with the best defense possible, to which, by law, doctors are entitled and with which, because of law, malpractice carriers dare not interfere.
This tool worked for me when I was sued. I used it as soon as I had all the facts, and I was dismissed with prejudice within 130 days of being served. I was exonerated, and it exposed an abuse of process by the plaintiff attorney. He had no expert witness.
Once I prevailed, I opened a grievance with the Attorneys’ Grievance Committee in the State of Maryland for abuse of process. The attorney claimed the dismissal was convenient because of an impending settlement with my co-defendant’s employer. Furthermore, he had a medical expert; in fact, he provided the name. The committee summarily closed the case.
My efforts failed. Even so, it cost me nothing, and the attorney identified the expert. I contacted the medical expert. This cost me nothing. The medical expert affirmed, in writing, that he was never a certified witness. He never opined that I departed from standards of care.
The patient knew or should have known the above circumstance and still agreed with the attorney to proceed with the lawsuit. I decided to sue the patient for malicious prosecution. When one attorney echoed the mantra of don’t worry, be happy. I moved on. When another wanted a retainer of $10,000, I moved on. Undeterred, I filed a lawsuit in Montgomery County, Maryland’s small claims court, demanding $ 5,000, including compensatory and punitive damages, and will represent myself. This was unprecedented.
It proceeded to trial. The patient was represented by the same attorney. The attorney based the defense on the same fabrication. However, now there was the medical expert’s written statement. The judge acknowledged that the malpractice suit was frivolous and, indeed, there may be abuse of process. But there was no proof of malice by the patient.
The judge’s decision was disappointing. In the final analysis, my demand was only $5,000. The result could have been the same even if I paid a lawyer $10,000. The attorney’s dishonesty was now public record. A rift opened between the patient and the attorney. Most importantly, the lawsuit cost the patient about $2000 for representation and cost me under $100 for the filing fee.
Success is not this 20:1 ratio. My goal is a paradigm shift.
The paradigm adds value to the law and to attorneys. Ninety-five percent confidence, rather than 50%, plus an ill-defined scintilla, makes the truth stand out in stark contrast.
The paradigm adds value to malpractice carriers. Because all frivolous and meritorious claims are judiciously expedited, avoidable costs to carriers are reduced, and malpractice premiums are decreased.
It adds value to society. Health care is more available, affordable, accessible, accountable, and able.
It returns power to physicians. Exposing a malicious claim sends a clear message to those who attack us.
It takes power from the medical liability litigation industry. Health reforms, tort reforms, and health law gurus have accomplished none of the above.
A paradigm shift is not for the faint of heart. I would never impose on you. However, if you are not among the faint of heart, heed this as a call to action.
Howard Smith is an obstetrics-gynecology physician.