Lawyers assert that they never file a frivolous lawsuit. All malpractice claims are legitimate because there is a reasonable suspicion of fault when a case is filed.

On January 21, 2022, at 11:40 a.m., I received a call from my attorney, who represented me in a frivolous malpractice lawsuit, informing me that I was unconditionally dismissed. I never doubted that dismissal with prejudice was inevitable.

For a lawyer, a malpractice lawsuit is about syntactics. They use qualitative symbols. Reasonable suspicion of fault is a hunch. It is probable cause. Quantitatively, probable cause is 50% probable. A medical malpractice lawsuit requires reasonable degree of medical certainty. It is a proximate cause. Quantitatively, the proximate cause is greater than 50% probable. Syntactics conflate reasonable suspicion of fault with reasonable degree of medical certainty. Hence, for a lawyer, legitimate is meritorious.

A malpractice lawsuit can be legitimate and still be frivolous. Hypothesis testing makes the difference. It is quantitative. Retaining the null hypothesis (the standard of care) proves a doctor innocent. Rejecting the null hypothesis and accepting the alternate hypothesis (a departure from the standard of care) proves a doctor is negligent.

The burden of proof is always a preponderance of evidence — 50% probability plus a “scintilla.” Scintilla depends on the intuition of finders-of-facts; it is also quantitative. When scintilla is 0.01%, the burden of proof has a 50.01% probability. When a scintilla is 45%, the burden of proof has a 95% probability.

Even when scintilla is left to intuition, for any finder-of-fact, it is common sense that 95% probability is a stronger burden of proof than 50.01%. The higher the scintilla, the greater the chance that accepting the null hypothesis is the right decision and the lower the chance that rejecting the null hypothesis is the wrong one. Rejecting a true null hypothesis is a type-1 error. This is the difference between meritorious and frivolous.

Neither hypothesis testing nor syntactics changes the rules of civil procedure. In Maryland, where this case was filed, lawyers must certify merit, not legitimacy, when filing a lawsuit with a certificate of merit. They are permitted a 90-day grace period.

Since I served on 9/17/2021, this suit has had issues. First, the plaintiff’s lawyer requested medical records in 2018 and had to retain a medical expert to review them. Three years was ample time to obtain a certificate of merit. Yet, there was no certificate of merit and no medical expert identified.

Although the plaintiff’s counsel exploited the rules, I intended to follow them by insisting that my attorney identify a medical expert. Initially, he was reluctant because the plaintiff did not identify one. Nevertheless, he retained one. It took three days, not three years.

Second, the plaintiff’s counsel had no proof. The obligation of plaintiff’s counsel was to prove negligence. To do so, he used inductive reasoning, which was conventional. Inductive reasoning was logic. However, scintilla was intuition. Intuition was inference. Logic must validate inference. Without validation, inference was not proof.

I did not have to prove anything; I needed to cast doubt on the plaintiff’s attorney’s proof. The best way to do this was hypothesis testing, which was deductive reasoning. Deductive reasoning was logic. It, too, was used in court. I used a well-defined scintilla of 45%, which unequivocally validated 95% confidence. This was not intuition. It also retained the null hypothesis and decisively impeached the plaintiff’s case.

I, too, use syntactics. Malicious is an unspoken qualitative symbol. Every malicious lawsuit is frivolous. Since hypothesis testing proves that this lawsuit is frivolous with 95% confidence, the specter of malicious looms throughout.

I submit my proof to my attorney and insist that he conveys it to the plaintiff’s attorney. He advises against this because it shows “my hand.” Nevertheless, he agrees, as long as this is done separately from his answers to the complaint.

I want to show my hand. If the plaintiff uses hypothesis testing, a level of significance will likely correspond to 50.01% probability, which comports with inductive reasoning. He rejects the null hypothesis and proves negligence. However, there is a type-1 error of 49.99%. Hence, rejecting the null hypothesis has at least a 49.99% probability of being a wrong decision. A level of significance corresponding to 95% probability has a type-1 error of 5%. By contrast, maliciousness becomes an unspoken threat.

Thirty-seven days after seeing my proof, the plaintiff’s counsel dismissed me with prejudice, 127 days since I was first served.

Ambulance chasers hired guns, and miscreant claimants wage a war of attrition against all doctors. Between 20,000 and 85,000 malpractice suits are filed each year, and 70% of these are frivolous. One-million doctors share these same risks, and 5% of them will be sued each year.

The total cost of medical malpractice is $56 billion per year. Of this, $39 billion, comparable to profits for the Sinaloa drug cartel, is paid to this syndicate of ambulance chasers, hired guns, and miscreant claimants.

Because of this war, during my career, I have paid approximately $1 million in malpractice insurance premiums for protection against frivolous lawsuits. In return, discovery lasts for months when sued, and I am bound to an outcome controlled by the defense attorney and the malpractice carrier.

This time, I prevailed in 127 days. I, not my attorney or insurance company, prove this case is frivolous. Hypothesis testing, rules of civil procedure, codes of conduct in law and medicine, due diligence, and common sense are my strategies, tactics, and weapons.

Here is my epiphany. This is war. Every doctor has a 5% chance of being a casualty, and every battle has a 70% chance of being pointless and easily won. Because of the Hippocratic oath, I am happy to share my strategies, tactics, and weapons with doctors on this battlefield. Doctors are invincible when we stand defiant as “we few—we happy few—we band of brothers.”

Howard Smith is an obstetrics-gynecology physician.