There are 85,000 medical malpractice lawsuits filed per year. There are 1 million physicians. Therefore, your odds as a doctor for being sued for malpractice are 8.5 percent per year, which corresponds to one lawsuit every 12 years. To make matters worse, two-thirds of lawsuits have questionable merit.
A malpractice lawsuit is inevitable because a complication is inevitable. It just takes one complication. The problem arises when a complication is a random error of nature rather than a definite medical error. Your patient is still an unfortunate victim and can easily misconstrue an error of nature as a medical error and hold you, the physician, responsible for something that is completely out of your control.
Personal injury lawyers advertise, “If we don’t win, you don’t pay.” The patient contacts one. Medical records are reviewed by a medical expert whom this attorney has successfully used in the past.
The medical expert prepares a certificate of merit stating that there is a preponderance of evidence that your medical intervention departs from the standard of care. The next thing you know, there is a knock on your door. You open it, are handed an envelope, and are told, “You’ve been served.”
You dutifully contact your insurance carrier, and it contacts an attorney, whom it traditionally uses in these matters, to represent you. Attorneys know that if they don’t win, the insurance company still pays.
The attorney contacts a medical expert, whom this attorney routinely uses. The medical expert reviews these same records and opines that there is a preponderance of evidence that your medical intervention does not depart from the standard of care.
Both experts share your specialty, are among the most respected authorities in the specialty, and are obligated to objectivity. Since both cannot be right, one is obviously lying. How can this be?
The answer to this question is found in the “preponderance of evidence.” Both sides use preponderance of evidence, which corresponds to 50 percent probability plus a scintilla more. “Fifty percent probability plus a scintilla” is not objective.
The level of confidence for getting it right is around 51 percent, and the chance of getting it wrong is around 49 percent. Decisions by both medical experts have less to do with getting it right or getting it wrong than they have to do with maintaining an expert’s standing with their respective attorney. So, both experts make an educated guess to infer and/or to cast doubt on whether an unfortunate outcome is a medical error. This is not proof; this is a coin toss.
Your fate rests on this coin toss. Object as you might, you are told to cooperate. After all, you agree to the cooperation clause in your malpractice policy. If you do not cooperate, you will have no coverage.
It all comes down to preponderance of evidence. This is a legal principle set by the law. However, you are a physician; there is a corresponding medical principle set by medicine — statistical significance. It is not the same as preponderance of evidence, but it serves the same purpose, i.e., to validate evidence.
Just about every decision a doctor makes involves statistical significance. It validates whether two variables are related or if one is a result of random chance, and it does so with 95 percent confidence. It answers the question, does a treatment cause a complication or would the complication happen in spite of the treatment? These are everyday problems for doctors.
It is no different in medical malpractice. Just because a malpractice suit cannot be prevented does not mean that you cannot be protected. In fact, you protect yourself. Whenever embarking on a medical intervention, the following 18 words must be recorded in medical records: “With the exception of random occurrences, there is 95 percent confidence that this medical intervention is safe and effective.” This is what a patient is traditionally told as a matter of informed consent. Ninety-five percent confidence is objective.
Ninety-five percent confidence is also the sine qua non of statistical significance. While medical experts repetitively recite the mantras, “There is a reasonable degree of medical probability,” or “more likely than not,” which are the sine quibus non for preponderance of evidence, you have unequivocally expressed statistical significance just by using these 18 words in the medical record.
As a result, preponderance of evidence is no longer enough when the mantras of these medical experts stand in stark contrast to these 18 words. These 18 words change all the dynamics of a medical malpractice lawsuit.
What about medical experts? For there to be a departure from the standard of care, a medical expert must now prove or disprove a statistically significant difference between the incident risk of a medical error resulting from a medical intervention and the background risk of an error of nature associated with that same medical intervention. It stands to reason that if statistical significance is a professional standard, a medical expert should know how to do this.
What about attorneys who hire experts? Just because attorneys are held to different professional standards, they cannot demand experts to deviate from medical standards.
What about the malpractice carrier? Just because a complication has a settlement value, these 18 words prove the complication is an error of nature and disabuse a settlement of convenience.
What about you? If you can prove these 18 words, you are dismissed with prejudice. Otherwise, you are the culpable party.
What about justice? Meritorious lawsuits, medical experts who are faithful to objectivity, and making victims of negligence whole at the expense of the perpetrators of negligence are what justice is all about.
Howard Smith is an obstetrics-gynecology physician.
