Medical malpractice is a subject about which I am passionate. I am an obstetrician-gynecologist; I have been sued five times (one case ends in a mistrial, two in settlements of convenience, and two are dismissed with prejudice); I paid over $1 million in medical malpractice premiums over a career, and I abandoned my specialty because of threats of medical malpractice. These are reasons enough to be passionate.
There are 85,000 medical malpractice lawsuits filed per year. Some are medical errors, but some are errors of nature. For every meritorious lawsuit a plaintiff attorney files, there are two frivolous lawsuits. Plaintiff attorneys make such decisions based on advice about settlement value from a so-called “subject matter expert” in their firm, usually a nurse or physician assistant with a JD degree. Every case has a settlement value, and merit is secondary to it.
Next, plaintiff attorneys enter into contingency fee contracts with claimants. Such contracts stipulate that attorneys are paid only when they prevail, and they prevail when there is a settlement or a plaintiff verdict. This happens in one out of every four cases they represent, meritorious or not.
Next, plaintiff attorneys must find a medical expert to certify the merit of a claim, whether there is merit or not.
Nevertheless, this is all worth their efforts because 30 percent of every settlement and 40 percent of every plaintiff verdict belongs to them.
When all is said and done, plaintiff attorneys have the audacity to claim they never file a frivolous lawsuit and expect some sympathy because it is expensive for them to file a lawsuit. They make no money in 75 percent of all cases they represent. Remaining unspoken is that collectively, they win $10 billion in claims per year, of which $3.5 billion are contingency fees, whether a case is meritorious or not.
Defense attorneys are no better. They defend each of the 85,000 lawsuits that plaintiff attorneys file. They are paid an hourly rate whether they win or lose a case, regardless of merit, and the longer a case takes to adjudicate, the better. The average defense cost is $27,000. The collective total is $2.3 billion per year.
In the meantime, patsies like me pay $1 million in premiums over the course of a career because we have an 8.5 percent risk per year of being sued, and each lawsuit stands a 70 percent chance of being frivolous.
Because of my passion, I return to graduate school, earn a master’s degree in health care administration, and develop a process that can differentiate a meritorious claim from a non-meritorious one. The process is compatible with the scientific method, and the conclusions have a degree of confidence of 95 percent.
Since 2005, my process has been peer-reviewed and published in a medical-legal journal and in an accounting and actuarial science journal. It is cited by other authors and disseminated in other venues, including KevinMD.
I can and do take solace in the fact that each time I use my process in a lawsuit, I am dismissed from the case with prejudice. Had the process been used in the two cases settled out of convenience, I have no doubt there would have been no settlement. However, this was before I developed the process.
To my dismay, however, my process has never gained traction with others who should be using it, i.e., the medical profession, plaintiff attorneys, defense attorneys, and expert witnesses.
Granted, plaintiff attorneys may already have so-called “subject matter experts” in their firms. Nevertheless, what sets my process apart from what these “subject matter experts” do is that they consider settlement value; my process considers merit. Merit neutralizes settlement value. If there is no merit, there is no chance of a case prevailing. If there is no chance of prevailing, there is no settlement value. This is a disincentive for plaintiff attorneys. However, while there may be fewer cases, more cases will prevail.
Granted, defense attorneys charge billable hours and make money, win, lose, or draw. Merit neutralizes billable hours. This, too, is a disincentive. However, while there may be fewer billable hours per case, turnaround time is increased, and there will be more cases in which to charge billable hours.
Granted, medical experts use a preponderance of evidence, corresponding to 50 percent confidence plus a scintilla, while my process uses 95 percent confidence. This may run afoul of objections and may be a disincentive. However, regardless of what a court requires, a medical expert is a doctor and is ethically obligated to be objective and remain faithful to scientific standards. The sine qua non in science is 95 percent confidence. It can be argued that 95 percent confidence is still preponderance of evidence; however, scintilla, which can be anything, is 45 percent. In addition, when a medical expert swears to tell the truth, the whole truth, and nothing but the truth, 95 percent confidence is completely faithful to this oath. While some may argue that this process exceeds a judicial standard, it aligns with preponderance of evidence and the oath taken by every witness.
This leaves the medical profession. There is no foreseeable disincentive. There are 1 million of you, and you each have an 8.5 percent risk per year of being sued. Assuming the average doctor sees 20 patients per day, five days per week, and 50 weeks per year, this corresponds to 1,000 patients per year or 1 billion office visits nationwide. If 85,000 doctors are sued after 1 billion office visits, there is one medical malpractice lawsuit per 12,000 office visits or one malpractice lawsuit every 12 years per doctor. It follows that your chance of being sued is 0.003 percent per day. Like it or not, this is your risk. You will be sued.
Needless to say, there are many reasons to be passionate about a medical malpractice lawsuit. Forewarned is forearmed. I hope this post provokes your response.
Howard Smith is an obstetrics-gynecology physician.
