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

How to prevent a frivolous medical malpractice lawsuit

Howard Smith, MD
Physician
January 5, 2023
Share
Tweet
Share

There are 50,000 medical malpractice lawsuits filed per year. Each doctor has a 5 percent chance of being sued each year, and every doctor will be sued at least once in 20 years. 70 percent of medical malpractice lawsuits are non-meritorious and are dropped. These represent 35,000 frivolous lawsuits. Until now, there is no way to prevent a frivolous medical malpractice lawsuit.

America is a litigious society. The medical liability litigation industry is evolving in the United States. There are 600 plaintiff firms,  700 defense firms,  60 medical professional liability companies, an equal number of self-insured plans, 50 expert witness referral services,  thousands of medical expert witnesses, 80 special interest groups, the American Rule, the AMA’s Litigation Center and a parade of bureaucrats, who are self-proclaimed health policy experts, in all levels of government, not to mention those in organized medicine, in bar associations and in the tort system. The total commerce from medical liability is at least $ 56 billion per year, $ 39 billion of which is earned by the medical liability litigation industry.

This starts in the 1960s. Random mal-occurrences, as errors of nature, have always accompanied medical interventions even under the best of circumstances. They were inevitable. No one can be held accountable for errors of nature. However, some attorneys in California found a way.

At first glance, an error of nature is indistinguishable from a medical error. Holding a doctor accountable for an error of nature accompanying medical interventions became the present-day equivalent of a witch hunt. Create mass hysteria by capitalizing on a “suspicion of fault.” Suspicion of fault, like suspicion of a bewitching, normally accompanies misfortune. Once accomplished, people are convinced that lawsuits are justified. And so began the present-day witch hunts.

Witch hunts can be stopped. Case in point was Salem in 1692.   The population of the Massachusetts Bay Colony was approximately 10,000 people. Over 200, or 5 percent, were frivolously accused of witchcraft, and 20 were executed. Their property was seized by the Court of Oyer and Terminer and redistributed to the families of those “bewitched.”

In 1692, mass hysteria was used by puritanical zealots to provoke fear throughout the Massachusetts Bay Colony. It just took an accusation against anyone. Witch hunts ended when it was proven that the so-called bewitchings were nothing more than side effects of ingested ergot. Until then, fear of bewitchings resulted in a 5 percent chance for anyone to be accused of witchcraft, which led to a 10 percent chance of being executed as a witch. The accusers got their property, and the Court of Oyer took a piece of the action.   It ended when everyone in Salem, even the accusers, finally realized that they had skin in the game.

This is how to end a witch hunt. To this day, it is commonly accepted that the cause of most malpractice lawsuits is poor interpersonal communication by doctors. This is a complete myth. The root cause is the communication skills used by accusers, ambulance chasers, and hired guns to misrepresent an error of nature as a medical error caused by a physician. This witch hunt ends in the same way previous witch hunts ended – giving everyone involved, especially the accusers, skin in the game. This breaks the trend of mass hysteria.

There is a way for doctors to protect themselves from a frivolous medical malpractice lawsuit. They must make a prevailing party agreement with every patient in their practice.

The prevailing party agreement states in the event of any litigation arising from an allegation of medical malpractice, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred, including but not limited to court costs, attorney fees, costs of medical expert witnesses and all other related expenses incurred consequent to and in connection with such litigation.

Because malpractice insurance protects physicians from medical malpractice lawsuits and covers all their legal costs, it could be argued that doctors incur no personal costs even if they prevail. However, this dismisses the fact that the doctor pays malpractice premiums. When this claim is made, the premium itself is the cost arising from litigation. Hence, should the doctor prevail, the claimant is obliged to pay that year’s premium.

It remains to be seen how such an agreement affects a doctor’s practice; however, since each lawsuit has a 70 percent chance of being dropped and only a 1 percent chance of a plaintiff verdict, the doctor will likely be the prevailing party. This should discourage anyone from making a false allegation. Now everyone has skin in the game.

Howard Smith is an obstetrics-gynecology physician.

Prev

The emotional side of CPR: Reflecting on the challenges of resuscitation in the wake of Damar Hamlin's collapse

January 5, 2023 Kevin 0
…
Next

Clinicians serving under-resourced populations should seize opportunity for free lifestyle medicine education

January 5, 2023 Kevin 1
…

ADVERTISEMENT

Tagged as: Malpractice

Post navigation

< Previous Post
The emotional side of CPR: Reflecting on the challenges of resuscitation in the wake of Damar Hamlin's collapse
Next Post >
Clinicians serving under-resourced populations should seize opportunity for free lifestyle medicine education

ADVERTISEMENT

ADVERTISEMENT

ADVERTISEMENT

More by Howard Smith, MD

  • Why no medical malpractice firm responded to my scientific protocol

    Howard Smith, MD
  • The shocking silence of top law firms on frivolous medical lawsuits

    Howard Smith, MD
  • The medical malpractice system is broken: Who really benefits?

    Howard Smith, MD

Related Posts

  • Medical malpractice is a lot like running a marathon

    Christine Zharova, Esq
  • Digital advances in the medical aid in dying movement

    Jennifer Lynn
  • Medical malpractice: Don’t let the minority define us

    Shah-Naz H. Khan, MD
  • A medical student’s physician inspiration

    Uju Momah
  • Why this physician teaches first-year medical students 

    Mark Kelley, MD
  • Why a gap year will make this medical student a better physician

    Yoo Jung Kim, MD

More in Physician

  • The dreaded question: Do you have boys or girls?

    Pamela Adelstein, MD
  • When rock bottom is a turning point: Why the turmoil at HHS may be a blessing in disguise

    Muhamad Aly Rifai, MD
  • How grief transformed a psychiatrist’s approach to patient care

    Devina Maya Wadhwa, MD
  • Fear of other people’s opinions nearly killed me. Here’s what freed me.

    Jillian Rigert, MD, DMD
  • What independent and locum tenens doctors need to know about fair market value

    Dennis Hursh, Esq
  • How one simple breakfast question can transform patient care

    Dr. Damane Zehra
  • Most Popular

  • Past Week

    • What’s driving medical students away from primary care?

      ​​Vineeth Amba, MPH, Archita Goyal, and Wayne Altman, MD | Education
    • A faster path to becoming a doctor is possible—here’s how

      Ankit Jain | Education
    • A world without antidepressants: What could possibly go wrong?

      Tomi Mitchell, MD | Meds
    • Make cognitive testing as routine as a blood pressure check

      Joshua Baker and James Jackson, PsyD | Conditions
    • Rethinking patient payments: Why billing is the new frontline of patient care [PODCAST]

      The Podcast by KevinMD | Podcast
    • Why the words doctors use matter more than they think

      Erin Paterson | Conditions
  • Past 6 Months

    • What’s driving medical students away from primary care?

      ​​Vineeth Amba, MPH, Archita Goyal, and Wayne Altman, MD | Education
    • Internal Medicine 2025: inspiration at the annual meeting

      American College of Physicians | Physician
    • The silent crisis hurting pain patients and their doctors

      Kayvan Haddadan, MD | Physician
    • What happened to real care in health care?

      Christopher H. Foster, PhD, MPA | Policy
    • How the CDC’s opioid rules created a crisis for chronic pain patients

      Charles LeBaron, MD | Conditions
    • Are quotas a solution to physician shortages?

      Jacob Murphy | Education
  • Recent Posts

    • Rethinking patient payments: Why billing is the new frontline of patient care [PODCAST]

      The Podcast by KevinMD | Podcast
    • The dreaded question: Do you have boys or girls?

      Pamela Adelstein, MD | Physician
    • Make cognitive testing as routine as a blood pressure check

      Joshua Baker and James Jackson, PsyD | Conditions
    • Reimagining diabetes care with nutrition, not prescriptions

      William Hsu, MD | Conditions
    • Why funding cuts to academic medical centers impact all of us [PODCAST]

      The Podcast by KevinMD | Podcast
    • What’s driving medical students away from primary care?

      ​​Vineeth Amba, MPH, Archita Goyal, and Wayne Altman, MD | Education

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 9 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

    • What’s driving medical students away from primary care?

      ​​Vineeth Amba, MPH, Archita Goyal, and Wayne Altman, MD | Education
    • A faster path to becoming a doctor is possible—here’s how

      Ankit Jain | Education
    • A world without antidepressants: What could possibly go wrong?

      Tomi Mitchell, MD | Meds
    • Make cognitive testing as routine as a blood pressure check

      Joshua Baker and James Jackson, PsyD | Conditions
    • Rethinking patient payments: Why billing is the new frontline of patient care [PODCAST]

      The Podcast by KevinMD | Podcast
    • Why the words doctors use matter more than they think

      Erin Paterson | Conditions
  • Past 6 Months

    • What’s driving medical students away from primary care?

      ​​Vineeth Amba, MPH, Archita Goyal, and Wayne Altman, MD | Education
    • Internal Medicine 2025: inspiration at the annual meeting

      American College of Physicians | Physician
    • The silent crisis hurting pain patients and their doctors

      Kayvan Haddadan, MD | Physician
    • What happened to real care in health care?

      Christopher H. Foster, PhD, MPA | Policy
    • How the CDC’s opioid rules created a crisis for chronic pain patients

      Charles LeBaron, MD | Conditions
    • Are quotas a solution to physician shortages?

      Jacob Murphy | Education
  • Recent Posts

    • Rethinking patient payments: Why billing is the new frontline of patient care [PODCAST]

      The Podcast by KevinMD | Podcast
    • The dreaded question: Do you have boys or girls?

      Pamela Adelstein, MD | Physician
    • Make cognitive testing as routine as a blood pressure check

      Joshua Baker and James Jackson, PsyD | Conditions
    • Reimagining diabetes care with nutrition, not prescriptions

      William Hsu, MD | Conditions
    • Why funding cuts to academic medical centers impact all of us [PODCAST]

      The Podcast by KevinMD | Podcast
    • What’s driving medical students away from primary care?

      ​​Vineeth Amba, MPH, Archita Goyal, and Wayne Altman, MD | Education

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

How to prevent a frivolous medical malpractice lawsuit
9 comments

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

Loading Comments...