Skip to content
  • About
  • Contact
  • Contribute
  • Book
  • Careers
  • Podcast
  • Recommended
  • Speaking
  • All
  • Physician
  • Practice
  • Policy
  • Finance
  • Conditions
  • .edu
  • Patient
  • Meds
  • Tech
  • Social
  • Video
    • All
    • Physician
    • Practice
    • Policy
    • Finance
    • Conditions
    • .edu
    • Patient
    • Meds
    • Tech
    • Social
    • Video
    • About
    • Contact
    • Contribute
    • Book
    • Careers
    • Podcast
    • Recommended
    • Speaking

Your best defense? Don’t play by the rules in a medical malpractice case.

Howard Smith, MD
Physician
September 4, 2021
Share
Tweet
Share

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.

ADVERTISEMENT

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.

Image credit: Shutterstock.com

Prev

COVID and Afghanistan: a war on 2 fronts

September 4, 2021 Kevin 1
…
Next

Debunking common virtual therapy myths and tips for new patients [PODCAST]

September 4, 2021 Kevin 0
…

Tagged as: Malpractice

Post navigation

< Previous Post
COVID and Afghanistan: a war on 2 fronts
Next Post >
Debunking common virtual therapy myths and tips for new patients [PODCAST]

ADVERTISEMENT

ADVERTISEMENT

ADVERTISEMENT

More by Howard Smith, MD

  • The hidden incentives driving frivolous malpractice lawsuits

    Howard Smith, MD
  • How doctors can stop frivolous lawsuits before they start

    Howard Smith, MD
  • When errors of nature are treated as medical negligence

    Howard Smith, MD

Related Posts

  • Why medical school is like playing defense

    Jamie Katuna
  • Digital advances in the medical aid in dying movement

    Jennifer Lynn
  • In defense of pimping in medical education

    Zachary Fredman, MD
  • Medical malpractice: Don’t let the minority define us

    Shah-Naz H. Khan, MD
  • How the COVID-19 pandemic highlights the need for social media training in medical education 

    Oscar Chen, Sera Choi, and Clara Seong
  • Don’t judge when trainees use dating apps in the hospital

    Austin Perlmutter, MD

More in Physician

  • The hidden incentives driving frivolous malpractice lawsuits

    Howard Smith, MD
  • Mastering medical presentations: Elevating your impact

    Harvey Castro, MD, MBA
  • Marketing as a clinician isn’t about selling. It’s about trust.

    Kara Pepper, MD
  • How doctors took back control from hospital executives

    Gene Uzawa Dorio, MD
  • How art and science fueled one woman’s path to medicine

    Amy Avakian, MD
  • In a fractured world, Brian Wilson’s message still heals

    Arthur Lazarus, MD, MBA
  • Most Popular

  • Past Week

    • Why flashy AI tools won’t fix health care without real infrastructure

      David Carmouche, MD | Tech
    • Key strategies for smooth EHR transitions in health care

      Sandra Johnson | Tech
    • 2 hours to decide my future: How the SOAP residency match traps future doctors

      Nicolette V. S. Sewall, MD, MPH | Education
    • Reassessing the impact of CDC’s opioid guidelines on chronic pain care [PODCAST]

      The Podcast by KevinMD | Podcast
    • When the diagnosis is personal: What my mother’s Alzheimer’s taught me about healing

      Pearl Jones, MD | Conditions
    • Why Medicaid cuts should alarm every doctor

      Ilan Shapiro, MD | Policy
  • Past 6 Months

    • Why tracking cognitive load could save doctors and patients

      Hiba Fatima Hamid | Education
    • What the world must learn from the life and death of Hind Rajab

      Saba Qaiser, RN | Conditions
    • How scales of justice saved a doctor-patient relationship

      Neil Baum, MD | Physician
    • The silent toll of ICE raids on U.S. patient care

      Carlin Lockwood | Policy
    • My journey from misdiagnosis to living fully with APBD

      Jeff Cooper | Conditions
    • “Think twice, heal once”: Why medical decision-making needs a second opinion from your slower brain (and AI)

      Harvey Castro, MD, MBA | Tech
  • Recent Posts

    • What the research really says about infrared saunas

      Khushali Jhaveri, MD | Conditions
    • How the cycle of rage is affecting physicians—and how to break free

      Alexandra M.P. Brito, MD and Jennifer L. Hartwell, MD | Conditions
    • Why ADHD in adults is often missed—and why it matters [PODCAST]

      The Podcast by KevinMD | Podcast
    • Dedicated hypermobility clinics can transform patient care

      Katharina Schwan, MPH | Conditions
    • It’s time for pain protocols to catch up with the opioid crisis

      Sarah White, APRN | Conditions
    • First impressions happen online—not in your exam room

      Sara Meyer | Social media

Subscribe to KevinMD and never miss a story!

Get free updates delivered free to your inbox.


Find jobs at
Careers by KevinMD.com

Search thousands of physician, PA, NP, and CRNA jobs now.

Learn more

View 1 Comments >

Founded in 2004 by Kevin Pho, MD, KevinMD.com is the web’s leading platform where physicians, advanced practitioners, nurses, medical students, and patients share their insight and tell their stories.

Social

  • Like on Facebook
  • Follow on Twitter
  • Connect on Linkedin
  • Subscribe on Youtube
  • Instagram

ADVERTISEMENT

ADVERTISEMENT

ADVERTISEMENT

ADVERTISEMENT

  • Most Popular

  • Past Week

    • Why flashy AI tools won’t fix health care without real infrastructure

      David Carmouche, MD | Tech
    • Key strategies for smooth EHR transitions in health care

      Sandra Johnson | Tech
    • 2 hours to decide my future: How the SOAP residency match traps future doctors

      Nicolette V. S. Sewall, MD, MPH | Education
    • Reassessing the impact of CDC’s opioid guidelines on chronic pain care [PODCAST]

      The Podcast by KevinMD | Podcast
    • When the diagnosis is personal: What my mother’s Alzheimer’s taught me about healing

      Pearl Jones, MD | Conditions
    • Why Medicaid cuts should alarm every doctor

      Ilan Shapiro, MD | Policy
  • Past 6 Months

    • Why tracking cognitive load could save doctors and patients

      Hiba Fatima Hamid | Education
    • What the world must learn from the life and death of Hind Rajab

      Saba Qaiser, RN | Conditions
    • How scales of justice saved a doctor-patient relationship

      Neil Baum, MD | Physician
    • The silent toll of ICE raids on U.S. patient care

      Carlin Lockwood | Policy
    • My journey from misdiagnosis to living fully with APBD

      Jeff Cooper | Conditions
    • “Think twice, heal once”: Why medical decision-making needs a second opinion from your slower brain (and AI)

      Harvey Castro, MD, MBA | Tech
  • Recent Posts

    • What the research really says about infrared saunas

      Khushali Jhaveri, MD | Conditions
    • How the cycle of rage is affecting physicians—and how to break free

      Alexandra M.P. Brito, MD and Jennifer L. Hartwell, MD | Conditions
    • Why ADHD in adults is often missed—and why it matters [PODCAST]

      The Podcast by KevinMD | Podcast
    • Dedicated hypermobility clinics can transform patient care

      Katharina Schwan, MPH | Conditions
    • It’s time for pain protocols to catch up with the opioid crisis

      Sarah White, APRN | Conditions
    • First impressions happen online—not in your exam room

      Sara Meyer | Social media

MedPage Today Professional

An Everyday Health Property Medpage Today
  • Terms of Use | Disclaimer
  • Privacy Policy
  • DMCA Policy
All Content © KevinMD, LLC
Site by Outthink Group

Your best defense? Don’t play by the rules in a medical malpractice case.
1 comments

Comments are moderated before they are published. Please read the comment policy.

Loading Comments...