Data indicates that there are 85,000 malpractice lawsuits filed per year. This is the status quo.
What if the status quo is worse? There are other data showing that 85,000 is only the number of lawsuits represented by lawyers. There are 3.065 million additional claims that lawyers do not represent. The total could be 3.15 million. Plaintiff lawyers agree that, for every 37 cases that cross their desks, 36 are summarily dismissed. This is consistent with 3.15 million potential cases.
With 85,000 lawsuits, an average doctor’s risk is 8.5 percent per year, or one lawsuit every 12 years. With 3.15 million, it soars to 315 percent, or three lawsuits per doctor per year. Likewise, with 85,000 malpractice lawsuits, health care costs $60 billion per year. With 3.15 million, the cost is unsustainable. The status quo we accept favors doctors; the alternative does not.
How did we get here? After all, there are standards of care to which all doctors are duty-bound. We got here because a malpractice lawsuit has less to do with a departure from the standard of care than it has to do with one word: complications. Complications are inevitable. However, not every complication is medical malpractice.
Some complications, specifically those proceeding from a validated medical error, are. However, what if a physician completely comports with the standard of care, makes no verifiable medical error, and a complication occurs? It is a random event. It is beyond any physician’s control. Regrettable as this might be, this happens. We all know there are “errors of nature.” Any lawsuits that proceed under these circumstances necessarily have no merit. They are frivolous. Of the 85,000 lawsuits filed, two-thirds fit this category.
Nevertheless, under these circumstances, one can hardly blame an unfortunate victim for not knowing the difference between a medical error and an error of nature. Such a patient suspects that a maleficent physician committed a medical error during a medical intervention and that this “complication” is really an injury, but does not really know. It happens that one evening, when watching TV, the patient sees a commercial for a personal injury attorney advertising a free consultation, stating, “If we don’t win, you don’t pay.” The patient is tempted. After all, there is no disincentive. There is nothing to lose and everything to gain.
Perhaps there is a sincere belief about a medical error by a maleficent physician. Perhaps, though, there is something else: the physician is the “goose that lays the golden egg.”
Assume you are this physician. The first party aware of a complication is the physician. You obviously know that you comport with the standard of care. Yet, a complication emerges. To your credit, you try to prevent it, but to no avail. You do nothing wrong.
Nevertheless, as complications are inevitable, so are lawsuits. You know you will be sued. You are even anxious. However, you are conditioned by what others have told you in the past: “Relax, you are protected by malpractice insurance for such things.”
True, you have malpractice insurance. It pays your lawyer; it indemnifies losses. But it does not protect you. You may be self-employed and prefer that your colleagues do not know. You may be employed and prefer that your employer does not know. You fear their loss of respect. In fact, you are delusional. Your colleagues share your risk, and your employer is a co-defendant.
So, what should you do following a complication?
First, hopefully, you already did. You dutifully and contemporaneously document everything in the medical record. If not, prepare an addendum, date it, and sign it. Do not backdate it. Remember always, a lawsuit is just words. Actions speak louder than words. Documentation is action.
Second, get out of your delusional stupor and submit a report. When you read your insurance policy, you find “the reporting clause.” It requires that the carrier is notified of a “suspicious negligent event.” The lawsuit has yet to be filed, but there is a complication. A complication is a “suspicious negligent event.”
In the report, do not use the mantra “preponderance of evidence.” It is legalese, the sine qua non for a level of confidence of 51 percent. Instead, emphasize that there is “95 percent confidence of no statistical significance between this complication and a random error of nature.” This is the sine qua non for hypothesis testing. If a complication is a random error of nature, there is no departure from the standard of care and no causation. This is also “medical talk,” and you are a physician.
Actions speak louder than words. Preparing a report after a complication is proactive. Preparing a report after a lawsuit is reactive.
Also, you find the “cooperation clause.” It obligates you to cooperate with the attorney. Make no mistake: this clause is a cudgel. The lawyer is in your insurance carrier’s pocket, and your carrier is the “partner.” You are muted. Submitting a report is not uncooperative. It is in complete compliance with the policy. It also establishes your voice because the attorney sees the report. Actions speak louder than words.
Since 36 out of every 37 cases never see the light of day, the plaintiff attorney may not represent the case. However, if, one day, you walk into your office, are handed an envelope, and are told, “You’ve been served,” you have the upper hand.
In conclusion, this is what I do. In 2004, I developed a tool that tests the null hypothesis. The tool adapts the scientific method to prove merit, or the lack thereof, in a medical malpractice case with 95 percent confidence. This tool is peer-reviewed by scholars in medicine, the law, statistics, and actuarial science. Since developing it, I have been sued twice and was enthusiastically proactive in my own defense. I am dismissed with prejudice twice. Twice is 100 percent of the time.
You can believe, “Relax, you are protected by malpractice insurance for such things,” or you can believe me. It is your choice.
Howard Smith is an obstetrics-gynecology physician.
