A quote by Sir Winston Churchill: “However beautiful the strategy, you should occasionally look at the results.”
Actually, Churchill never said this. It may have been Ian Gilmour, a member of Margaret Thatcher’s Cabinet, years after Churchill’s death. Nevertheless, this quote is often cited in the context of risk management. It is as relevant in a medical malpractice lawsuit as it is a warning to malpractice attorneys. No matter how elegant the legal strategy upon which a malpractice lawsuit may be based, the result is a 66.7% chance the lawsuit is frivolous.
Decision-making underlies legal strategy in every medical malpractice lawsuit. There are only two types of decision-making: inductive reasoning and deductive reasoning.
The decision-making traditionally used in a medical malpractice case is inductive reasoning. There is nothing wrong with inductive reasoning. For that matter, neither is there anything wrong with deductive reasoning. Both are time-honored and have their place. Nevertheless, deductive reasoning is not traditional in medical malpractice litigation. The Supreme Court’s Daubert decision affirms that deductive reasoning (the scientific method) has a place in a medical malpractice lawsuit. Most forensic tools used by the law, like fingerprint analysis, use deductive reasoning.
Yet, attorneys deny deductive reasoning a place in medical malpractice litigation. There are differences between inductive and deductive reasoning, and their reason is found in these differences. Simply put, inductive reasoning is to deductive reasoning as subjective is to objective, as qualitative is to quantitative, as inference is to concrete proof, and as a threat to validity is to soundness.
In all medical malpractice cases, there is the “burden of proof.” It is the preponderance of evidence, which corresponds to 50% probability plus a random scintilla.
Inductive reasoning is qualitative. Scintilla is just a smidgen. Fifty-percent probability plus a smidgen corresponds to “more likely than not.” This mantra is constantly repeated. A medical error is “more likely than not” caused by a departure from the standard of care. However, “more likely than not” is not proof; it is inference. The side that prevails during discovery or at trial subjectively satisfies “more likely than not” the best.
Deductive reasoning is quantitative. It is the scientific method. The sine qua non in the scientific method is 95% confidence. The burden of proof is still 50% probability plus a random scintilla, but scintilla is not a smidgen. It is 45%. The level of confidence is 95%. The counter-mantra is that there is “95% confidence” that a medical error is, or is not, caused by a departure from the standard of care.
“Level of confidence” is the odds of getting it right. Now, the side that prevails during discovery or at trial objectively proves “95% confidence.”
In my opinion, lawyers favor inductive reasoning over deductive reasoning because inductive reasoning requires a legal strategy in which it just takes a smidgen to prove or cast doubt on whether a medical error is caused by a departure from the standard of care. Smidgen, which is the sine qua non for inductive reasoning, legitimizes lawsuits that lawyers know have no merit, so they can claim they never file frivolous lawsuits. However, there is type-1 error.
“Type-1 error” is the odds of getting it wrong. All decision-making techniques have a type-1 error. It measures threats to validity, i.e., deceit. When the level of confidence is “more likely than not,” even a smidgen results in type-1 error as high as 49%. The lower the scintilla, the lower the level of confidence, and the higher the type-1 error.
When scintilla is just a smidgen, there is only a smidgen of deceit, which the legal strategy obscures and lawyers dismiss. Even so, to the dismay of lawyers, type-1 error is inescapable. Jurors are not supposed to know about type-1 error.
While inductive reasoning has a type-1 error of 49%, 95% confidence is essential to deductive reasoning. Deductive reasoning is not riddled by threats to validity because type-1 error is only 5%. When the heuristic for deductive reasoning is vigorously followed, what results is concrete proof.
Deductive reasoning stands in stark contrast to inductive reasoning. This difference is obvious to everyone. It scares the bejesus out of plaintiff attorneys. They know that any rational person logically understands that a level of confidence of 95% with a type-1 error of 5% prevails over a level of confidence of “around 51%” with a type-1 error of “around 49%.”
To overcome this, lawyers tilt the playing field by establishing a false narrative that medical malpractice is adjudicated using the lowest common denominator for burden of proof, which favors inductive reasoning. Hence, the door is open for all threats to validity, including sympathy bias, which often causes an unwarranted decision. Not so for deductive reasoning. There are still threats to validity, but it potentially averts them by exposing them for finders-of-fact to see.
Regardless of the origin of the quote, it is still a warning that one should not embrace a strategy when the result is less than intended. The strategy most used in medical malpractice is inductive reasoning. The result is that 2/3 of all lawsuits are frivolous from the get-go. The take-home message is that lawyers who use inductive reasoning in medical malpractice use a strategy that has a type-1 error of as much as 49% and have no problem with threats to validity.
Lawyers who use deductive reasoning level the playing field. They argue with a level of confidence of 95%. They are better able to impeach the inductive reasoning of opposing counsels during discovery and at trial. At the same time, they themselves are more difficult to impeach because type-1 error is only 5%. This is obvious to everyone.
Howard Smith is an obstetrics-gynecology physician.
