A scientific approach to malpractice defense

There has always been a “fight club” because there have always been medical malpractice lawsuits. They are predicated on complications, either errors of nature or medical errors, and no doctor is immune. In the United States, roughly 85,000 medical malpractice lawsuits are filed per year, and there are 1 million doctors. For any doctor, the background risk for a medical malpractice lawsuit is 8.5% per year.

Are these statistics acceptable to you? Not to me. This is why I developed a risk management tool that serves me like a martial art. It works for me. Furthermore, it provides me leverage with my attorney and malpractice carrier. Know, too, that it has been peer-reviewed by the American Journal of Statistics and Actuarial Science.

I have only one thing to say: “Malpractice attorneys beware.” I am ready for them, and I will no longer tolerate a non-meritorious lawsuit that makes an unpreventable and, albeit, regrettable error of nature appear like a heinous medical error.

Until now, lawyers made the rules for “fight club.”

The first rule of fight club is never talk about fight club. Lawyers know that talk betrays their motives.

Hire the right medical expert. Lawyers hire medical experts who willingly push the limits of credulity to serve their interests. These so-called experts are nothing more than sanctimonious hired guns.

Follow convention just enough to win. Convention is the burden of proof. The burden of proof is a preponderance of evidence, notably, a reasonable degree of medical probability. This corresponds to 50% confidence plus a scintilla. This alone opens the door to exploitation. If scintilla has no concrete value, a hired gun who serves the interests of the retaining attorney, AKA the ambulance chaser, can undoubtedly influence the value that each finder-of-fact places on scintilla. It comes as no surprise that a decision made by a finder-of-fact can have a level of confidence for being correct as low as 51%. The decision can also have a risk of being wrong as high as 49%. This is called a type-1 error.

If lawyers make the rules of fight club, nothing prevents us from making our own rules. As far as I know, I am the only party who has done this.

The first rule of fight club is to follow convention as convention is intended to be used. Convention is the scientific method. The burden of proof remains a preponderance of evidence; however, in the scientific method, scintilla is a concrete 45%. Forty-five percent gives the burden of proof 95% confidence, which is the sine qua non of scientific inquiry.

Make sure the right medical expert is hired. A medical expert who does not push the limits of credulity and uses the scientific method serves our interests. They are not sanctimonious hired guns.

Talk openly about fight club. Why should doctors care if talk betrays a lawyer’s motives? Bring it to them!

How any lawsuit is ultimately decided by finders-of-fact remains to be seen. However, if 50% confidence plus a scintilla is used by the ambulance chaser and the hired gun to prove that a complication is a medical error, and if you, the physician, retain the null hypothesis proving that this complication is an error of nature with 95% confidence, you stand out in stark contrast to them. Any reasonable finder-of-fact knows that 95% confidence is better than 50% plus a scintilla. Also, a type-1 error of only 5% is better than a type-1 error of 49%.

My risk management tool is discussed in earlier posts. I will say no more of it than it is completely consistent with the scientific method.

By using my tool, any blameless doctor can prove that the complication is an error of nature and prevail in a lawsuit either at trial or by dismissal with prejudice. By proving it is an error of nature, at the very least, the lawsuit is frivolous. At the very most, the lawsuit is malicious. Every malicious lawsuit is frivolous.

What’s next? The doctor did not start this fight, and the fight is not over until the doctor says it is. This brings us to the last rule of fight club. Speak out and bring it to them!

First, a doctor can report the ambulance chase to the state bar counsel for intentionally filing a malicious lawsuit. This costs nothing. At the very least, ambulance chasers have to respond, and their peers are left to judge them.

Second, a doctor can report the hired gun to the state board of medicine for unethical conduct. A medical expert has an ethical obligation to be unbiased, nonpartisan, and objective. Because this lawsuit is frivolous, this hired gun does everything but. This costs nothing. At the very least, sanctimonious hired guns have to respond, and peers are left to judge them.

Third, a doctor can sue the plaintiff in small claims court for malicious prosecution. The doctor suffered damages, notably, the personal cost for defense and punitive damages. Go to the limit of damages in small claims court, which is set by the state. Doctors can represent themselves. This costs the filing fee, usually less than $100. At the very least, the plaintiff will be represented by an attorney and will sustain several thousand dollars in legal fees. At the very most, the doctor can win damages up to the limit set by the state.

Whatever goes around, comes around. I have no doubt that many doctors reading this will hear the words, “You have been served.” They can piteously lament their sorry fates and submit to the strategies of the malpractice carrier and the defense counsel it retains for them, but they cannot say that they have not been shown the way to take charge.

Howard Smith is an obstetrics-gynecology physician.

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