In 2004, the AMA declared a “medical malpractice crisis.” At that time, 34 percent of all physicians in the United States had been sued. The practice of medicine was at risk. Hospitals were closing. Coverage for certain high-risk specialties was unaffordable. Medical services were unavailable. Some malpractice carriers were on the verge of insolvency.
This has been the case since the mid-1970s. Coincidentally, so has a political initiative for national health insurance. Nevertheless, even future initiatives, such as Hillarycare and Obamacare, were largely silent on medical malpractice. If anything represents a crisis in need of a solution, it is this. By 2017, 55 percent of all physicians in the United States had been sued, and despite 100 tort reforms, the crisis continued.
If statistics hold true, you have been sued, or you will be.
I am an OB/GYN who practiced in Washington, D.C., between 1978 and 2010. Most of this time, I was a partner in a multispecialty group. At first, the group was insured by one of the major malpractice carriers; however, during one year, there was a transition to another.
There was a smaller reciprocal carrier insuring a total of 4,700 physicians in Virginia, Maryland, Delaware, North Carolina, West Virginia, and 62 percent of all doctors in the District of Columbia.
While a partner in my group, between 1978 and 1990, I was sued three times. This was not too surprising, considering that the District of Columbia has the largest concentration of lawyers in the world and the highest severity of claims in the country.
The first case was for Down syndrome. There was a mistrial on the first day. Nevertheless, the first carrier for my group agreed to pay $35,000 to offset the plaintiff’s contingency fee agreement and to avoid a new trial. I was reminded of the “cooperation clause,” and I agreed in order to avoid the consequences.
The second case was for cerebral palsy. Medical documents unequivocally showed placental insufficiency, non-reassuring antenatal monitoring, and falling serial estriols. I responded by performing an emergency C-section on a low-birthweight preterm fetus who later developed cerebral palsy. This case was settled before trial, and again, I agreed, thereby avoiding conflict with the cooperation clause. This lawsuit occurred during the aforementioned transition period, and the dispute between the two carriers was notorious.
The third case was for a surgical injury. This time, the second carrier demanded compliance with the cooperation clause, and again, I agreed to settle for the same reason.
By now, I realized that when I was sued, the malpractice carrier, the attorney selected by the malpractice carrier, and the medical expert retained by the attorney all had their own interests. After delivering my 1,000th infant and facing an insurance premium of $140,000 a year, I resigned from the group. I also abandoned my core competency, obstetrics. Now, in my own practice of office gynecology, I was insured by the same carrier that insured most other doctors in the District of Columbia.
After reviewing my risks, I purchased no tail. I earned a master’s degree in health care administration, thereby acquiring skills for “hypothesis testing.” I developed a decision-making model using these skills in medical malpractice. It is peer-reviewed and available. It is my passion expressed on KevinMD.
To summarize, my model is based on hypothesis testing, which has 95 percent confidence—the standard in the medical profession. An opinion having 95 percent confidence has greater validity than one with 50 percent confidence plus a scintilla, the standard for the legal profession.
While in my own practice, I saw a surgically menopausal patient who was also being treated for hypertension. She was referred to me by her internist. I refilled a prescription for Prempro (Premarin plus Provera). These were the days when the “women’s health initiative” was critical of hormonal replacement in such patients. Six months later, she had a stroke, and I found myself as a co-defendant in a lawsuit with the manufacturer of Prempro and the two other doctors—her surgeon and her internist—both insured by the same malpractice carrier as I was.
Before refilling the script, I documented, “Random occurrences notwithstanding, there is 95 percent confidence that the use of Prempro is both safe and effective” in the patient’s medical record. This was consistent with results in my decision-making model, which was also documented. I discussed this note and the decision-making model in my deposition. Shortly thereafter, I was dismissed with prejudice. So were my colleagues. The drug company agreed to settle the case.
I did not know it then, but my insurance company was in big trouble. In 2001, the total cost of claims was $6.7 million. Earned premiums were $6.2 million. On August 2, 2005, it was gone. It was one of a few AM Best “A” rated medical professional liability insurance companies to fail. What diagnostic signal does this send?
My story does not end here. In 2018, as an employee of a medical weight management clinic, I saw a patient for just a few visits. I documented, “Random occurrences notwithstanding, there is 95 percent confidence that a medical intervention for weight loss is both safe and effective.” In November 2020, I found myself as a co-defendant with my former employer for some unspecified complication. I submitted a report to the carrier, and when speaking to the assigned attorney, I proactively demanded that this same report and the decision-making model on which it is based be made known to the plaintiff’s attorney. Two months later, in February 2021, I was dismissed with prejudice, and my former employer agreed to settle because of shady business practices.
I used my decision-making model two times, and I was dismissed with prejudice two times shortly afterward. Interpret this as you may, but I have no doubt about what the results would have been if I had used it in the other three lawsuits.
Howard Smith is an obstetrics-gynecology physician.
