How medical malpractice lawsuits are silencing good doctors

In Gerald Green’s The Last Angry Man, Dr. Samuel Abelman is a general practitioner in the twilight of a career that spans fifty years of commitment to patients.

The time is the 1950s, and the place is Brooklyn, NY. The problem is the proliferation of medical specialties.

Although most of his colleagues regard specialization as a greater good because it promises better-trained physicians, Dr. Abelman sees specialization as antithetical to his mission. His mission is to practice quality medicine that improves and, sometimes, saves the lives of his patients.

Specialization will compartmentalize the medical profession. He is outspoken over its impact on divide and conquer. Although many see him as a curmudgeon, the most elite physicians in Brooklyn see him as a threat. Because he holds to ideas that “time has left behind,” he must be silenced. In today’s lexicon, this is cancel culture. Because his colleagues capitulate to elite interests in the medical profession, he is the last angry man.

Bringing things forward to today, the place is Anywhere in the USA, and the problem is the proliferation of medical malpractice lawsuits. Our mission is to improve and, sometimes, save lives by practicing quality medicine.

Even when practicing quality medicine, unfortunate outcomes are inevitable. Many are random events, but some are caused by medical errors. Because outcomes that are random are indistinguishable from outcomes that are medical errors, any adverse outcome from a medical intervention is assumed to be a medical error. Because a lawsuit is a way to prove that an unfortunate outcome is a medical error, there are roughly 50,000 medical malpractice lawsuits per year. Every year, 5% of all physicians are sued.

Here, too, there is a greater good: physicians must pay for their mistakes. There is no denying the greater good. Doctors must only make sacrifices to protect themselves. They procure malpractice insurance. They practice defensive medicine. Some retire early. Some relocate. Some merge with integrated health systems. Some start a concierge practice. These are antithetical to our mission.

Malpractice lawsuits require a burden of proof called a preponderance of the evidence. It corresponds to a baseline of 50% probability plus some arbitrary scintilla. The preponderance of evidence is a judicial standard.

This is a low bar. Scintilla is intuitive and can be any value in the mind of the beholder. Even a value of 0.01% satisfies the burden of proof. Hence, the burden of proof needs only to exceed 50% probability. When a bar that low is all that is required to prove that an unfortunate outcome is a medical error, a lawsuit follows.

Medical malpractice litigation leaves much to intuition. By definition, the preponderance of evidence is intuitive. So is inductive reasoning. Therefore, inductive reasoning becomes a convention in medical malpractice litigation. Inductive reasoning is the means to provide sufficient probability to warrant an inference of cause and effect. Inductive reasoning is not proof of cause and effect; it is inference.

If most other decision-making requires a standard of confidence of at least 95%, and this judicial standard is just inference, there is a simple solution: deductive reasoning. It starts with scintilla. If scintilla adds some arbitrary measure to 50% probability, which is the baseline for the burden of proof, that measure could be 45%.

Not only is this consistent with the purpose of scintilla, but 45% probability + 50% probability = 95% probability, which is the level of confidence science requires to determine cause and effect. A medical error causes an unfortunate outcome. Deductive reasoning is proof, not intuition.

There is no judicial prohibition on deductive reasoning. In fact, a Supreme Court decision, the Daubert decision, endorses it. One side is free to use inductive reasoning, but when the other side uses deductive reasoning, for jurors, a concrete 95% confidence stands in stark contrast to 50% probability plus a scintilla. This is not a game-changer, but it surely levels the playing field.

This brings me back to previous posts about my model for decision-making in malpractice litigation. Although this model has been peer-reviewed and published, it has not gained the traction it deserves.

Seeking recognition, I present this model to organized medicine in the state of Maryland, where I reside. Yet, the medical society and the board of physicians dismiss it. It threatens them. I hold to “an idea ahead of its time.” This idea requires legal approval, and until then, I must be silenced. In today’s lexicon, this is cancel culture. This recalls The Last Angry Man.

Elite interests in organized medicine traditionally exploit controversy to their advantage. They always have, and they always do so under the ulterior motive of some greater good. In Dr. Abelman’s time, a better-trained physician is an ulterior motive for elite interests to take a piece of the action. What results is the American Association of Medical Colleges, which includes 135 specialties and subspecialties. If left to elite interests, board certification should be a condition to practice medicine.

Medical malpractice is no different. Today, the greater good is that physicians must pay for their mistakes. No one disputes this. The ulterior motive of elite interests produces an entire medical liability litigation industry worth over $200 billion per year, in which they have pecuniary interests. If left to them, commitment to pay for a mistake should be a condition to practice medicine.

If, by reading these words, you regard me as the “next angry man,” you are wrong. I am not angry because I can protect myself. You are the next angry man. If you doubt this, wait until you are next sued or until your malpractice coverage is next jeopardized. Both are inevitable. Malpractice coverage, defensive medicine, early retirement, relocation, merging with an integrated health system, concierge medicine, and elite interests in organized medicine will not protect you. Now is the time for you to protect yourself.

Howard Smith is an obstetrics-gynecology physician.

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