By Howard Smith, MD 

Unfortunate outcomes are inevitable even when practicing quality medicine. Most are random events, but some are medical errors. The majority of physicians have been sued and those, who have not, will be. Common to all defendants is that the lawsuit is totally fallacious.

To be fallacious, the outcome of a medical intervention must be an unpreventable random mal-occurrence. This is the only alternative to a medical error. Nevertheless, there is a greater good to be served, and that greater good is any victim of a medical error should be made whole. All physicians wish to serve the greater good. To error is only human. That is the purpose of malpractice insurance.

The road to hell is paved with good intentions, and every greater good has a caveat. In medical malpractice, the caveat is any adverse outcome from a medical intervention is a medical error until proven otherwise.

As a consequence, there is a conflict over outcomes that are random and outcomes that are medical errors. There are 46,000 malpractice suits every year. Sixty-eight percent of these, 31,000 claims, are summarily dropped. Seven percent, 3200 claims, end in a jury verdict, of which 2800 are defense verdicts and 400 are plaintiff verdicts. Twenty-five percent, 12,000 claims, are settled.

It follows that most lawsuits are non-meritorious. So, if you believe your case is fallacious, you are probably correct. However, do not rely on the odds because many cases, which are non-meritorious, have settlement values and are settled as a matter of convenience. For plaintiff attorneys, the real prize lies in settlements. Settlement are like the brass ring. If your attorney chooses to settle, the cooperation clause in your malpractice policy forces you to comply.

Face it, when it comes to a fallacious lawsuit, the ordinary rules throw physicians under the bus. Tort reforms do nothing. Organized medicine is hapless. Bar associations could care less. That does not mean we are powerless.

Remember the caveat, any adverse outcome from a medical intervention is a medical error until proven otherwise? Herein is our power. The plaintiff has the obligation to prove a medical error, otherwise, it is a random outcome.

The burden of proof is a preponderance of evidence. It is a time-honored judicial standard that has a baseline of 50% confidence to which an additional scintilla is added. Scintilla can be any value, as long as the burden of proof exceeds 50% confidence. Time-honored as it may be, preponderance of evidence is intuitive and does not prove anything. Even a scintilla of only 0.01% is sufficient to satisfy the burden of proof, but the burden of proof is insufficient to do more than just infer, not prove, a relationship between the medical intervention and the outcome.

Plaintiffs generally prove a malpractice case using inductive reasoning. Inductive reasoning leaves much to intuition. They use inductive reasoning because, by definition, the preponderance of evidence also leaves much to intuition. Hence, inductive reasoning becomes the convention in malpractice litigation for both the plaintiff attorney and the defense attorney. Nothing obligates us to use inductive reason.

Deductive reasoning is objective, and there is no place for intuition. There is no statutory prohibition against deductive reasoning. Deductive reasoning is used in civil cases all the time, just not in malpractice cases. With deductive reasoning, rather than scintilla being some self-intuited measure, scintilla is assigned a value of 45%? This is not contrary to the purpose of scintilla, and the burden of proof is now sufficient to distinguish whether or not the cause relates to the effect with 95% confidence. Deductive reasoning puts inductive reasoning at a distinct disadvantage. If the plaintiff is free to use inductive reasoning, what prevents the defense from using deductive reasoning? The answer is nothing.

Knowing this, I developed a model for deductive reasoning in malpractice. It is completely consistent with the scientific method. The anatomy of any medical intervention consists of 10 standard duties that arise from a patient’s first encounter until discharge and considers such things as the medical workup, informed consent, technical elements of treatment and follow-up. Each duty in the medical intervention has a counterpart in the standard of care. Any discrepancy between these counterparts is assigned a value that is the risk of harm caused by that discrepancy.

Next, statistical analysis tests the null hypothesis, the outcome is a random mal-occurrence. The sample includes the 10 values for the risks of harm in the medical intervention. The random mal-occurrence has a background risk to which this sample is compared. The level of significance is 0.05, which takes into account a scintilla of 45% and has 95% confidence. When the p-value ≥ 0.05, the sample is the same as a random mal-occurrence. When the p-value < 0.05, it is a medical error. This model is peer-reviewed, published, copyrighted and has a patent pending.

Academic recognition is worthless unless this model is used. If you believe a lawsuit against you is fallacious, use the model yourself to test the null hypothesis. There is no better way to cast doubt on the plaintiff’s case. Document your analysis and have it notarized.

Your attorneys, undoubtedly, have something else planned, but you have every right to know why their plan is better. After all, you are entitled to the best defense possible. It just takes a single question. “Since I have 95% confidence that the outcome from the care I render is a random event, can you assure me that your defense casts doubt on what is alleged against me and does so with the same level of confidence?” There is also one condition. “If evidence objectively shows, with 95% confidence, that, indeed, a medical error is a proximate cause, I am completely open to an expedient settlement because I want to make the victim of my mistake whole. Otherwise, there will be no settlement.”

Why should there be a settlement of a fallacious lawsuit? This should and would derail the case against you and removes any possible settlement value. Rejecting a settlement of convenience does not cost your attorney anything. It may cost the malpractice carrier some money, but the plaintiff’s attorney has everything to lose.

At last, what becomes obvious for all to see is those, who object loudest, are the ones who benefit most from the status quo. What also becomes obvious to all is you have done nothing wrong.

Howard Smith is an obstetrics-gynecology physician.