Every year, there are 85,000 medical malpractice lawsuits, of which 66.6 percent are frivolous. In the course of my endeavor to remedy frivolous medical malpractice claims, I introduce myself to 50 of the nation’s most prestigious medical malpractice law firms, both plaintiff and defense firms. I make it known that I have developed a risk management process. I make contact to explore the possibility of collaborating with them in some capacity.
Most of these firms represent themselves as having years of experience in medical malpractice litigation. In fact, collectively, they represent over 2,000 years of experience and expertise. Collectively, they all retain thousands of exceptionally qualified, preeminent, board-certified medical expert witnesses in virtually every medical specialty and subspecialty; in fact, they each have a stable full of them. While defense firms are paid billable hours, plaintiff firms are paid a contingency fee. Some plaintiff firms unabashedly claim millions of dollars in settlements and verdicts. They advertise, “If we don’t win, you don’t pay.”
In my contact, I ask one question, which I would expect any attorney to be able to answer and which is never addressed on any of their websites: What do expert witnesses, whom they retain, do that sets them apart from other medical experts? By this question, I do not mean, “What do medical experts do?” At best, medical experts are nonpartisan. At worst, they are “hired guns.”
I mean, “What, precisely, do those medical experts, who are hired by them, do that sets them apart?” In other words, why are their medical experts not “hired guns?”
I express that, in my humble opinion, because all medical experts are scientists, they should do what scientists do, not what lawyers do. According to Dr. Paul Brouardel, the father of forensic science, “If the law has made you a witness, remain a man of science … bear testimony within the limits of science.” Bearing witness within the limits of science follows four general principles.
1. Because the standard of care is the benchmark for competence, it stands to reason that any associated complication is a random error of nature, not an actionable medical error. This acknowledges that errors of nature “just happen,” and even standards of care are not immune to one.
2. Standards of care are empirical and, depending on circumstances, it stands to reason that a difference between the standard of care and the medical intervention does not necessarily represent a breach of duty. Sometimes, a “calculated risk” is necessary, and a risk-benefit ratio needs to be objectively considered in this determination.
3. In science, observations are measured. Because of the quantitative nature of the risk-benefit ratio, when the standard of care is compared to the medical intervention in a systematic way, the two are either the same or different. Differences between the standard of care and the medical intervention are objective, quantitative, and measurable. In fact, there are 10 such differences. Even if there is a difference, it stands to reason that, by following a properly executed calculated risk, the medical intervention is not a breach of duty. There may be a difference from the standard of care, but the difference is not statistically significant. Any complication that follows is an error of nature until proven otherwise.
4. “Until proven otherwise” is proving statistical significance. These differences from the standard of care represent the medical intervention. There is a sample of 10 quantitative measures. The sample is subjected to statistical analysis. If there is a statistical difference, there is a medical error, and the medical intervention departs from the standard of care. If there is no statistical difference, the opposite is true. The burden of proof corresponds to 50 percent probability plus a scintilla. Scintilla has a discretionary value. In statistical analysis, scintilla is 45 percent. Hence, the level of confidence is 95 percent, which is “the sine qua non” of science.
Understanding that this is what a medical expert, who is a scientist, does, I ask: Can any one of the hundreds, if not thousands, of medical experts whom these attorneys retain differentiate a medical error from a random error of nature with this same competence?
I go on to explain that I, alone, adapt the scientific method and make this distinction. My protocol is peer-reviewed. Even though their medical experts do not possess my skill set, I intend to share my protocol.
If I spark a scintilla of intellectual curiosity, any of these attorneys should want to discuss this further to explore the possibility of promoting my protocol to their medical experts. It only takes a phone call, and they all have my contact information.
After three months, not a single law firm responds. Interpret this as you may, but to me, it speaks volumes. What underlies their silence remains to be seen, but these attorneys, regardless of the side they represent, could not care less about a frivolous lawsuit. This is pathetic.
Howard Smith is an obstetrics-gynecology physician.