Attention all doctors: You can be dismissed from a medical malpractice lawsuit and, at the same time, save 30% on the cost of your medical malpractice premiums per year.
Just as no physician is immune from a complication, none are immune from a resulting malpractice lawsuit. As of now, you stand a 5% chance each year of a medical malpractice lawsuit that has a 70% chance of being frivolous. A 70% reduction of risk changes a 5% chance per year into a 1.5% chance. The 30% reduction of malpractice premiums depends on your specialty and location, but it is nothing to take lightly either. Even if you are an employed physician whose premium is paid by the employer, this gives you bargaining power within your organization.
Some complications result from medical errors; most result from errors of nature. Once a complication ends in a lawsuit, lawyers, whether for the defendant or the plaintiff, do not care to make the distinction, so it is up to you.
Like it or not, a burden of proof of 50% plus a scintilla is a pretty vague and ambiguous standard to prove negligence against you. The law is filled with vague ambiguities. I would never have thought that the law is served in this way.
In truth, it is not — lawyers are. For them, proving a vague ambiguity is convenient. Once they do and, if later, are found to be wrong, they are not accountable because a vague ambiguity separates truth from fallacy in the claim. Furthermore, attorneys only support the claim because of zealous advocacy. How convenient!
This is where I come in. I have the risk management tool that puts control into your hands and does so with 95% confidence. Remember, the plaintiff’s attorney only needs a burden of proof of 50% plus a scintilla to prove that you are negligent. This is equivalent to approximately 50.01% confidence. To defeat them, defense attorneys do not have to prove anything; they just need to cast doubt on the plaintiff attorney’s proof. Defense attorneys also use 50% confidence plus a scintilla, hoping jurors place a higher value on their scintilla than they do for plaintiff attorneys. My risk management tool has 95% confidence.
Once my risk management tool is used, it is not a question of you prevailing in court. You will. Jurors are intelligent and know the difference between 95% certainty and 50.01%. Because 95% confidence proves the lawsuit has no merit, the lawsuit is frivolous.
Ninety-five percent confidence scares the bejesus out of lawyers. No lawyer, regardless of the side they represent, wants to be associated with a frivolous lawsuit. Therefore, you will be dismissed with prejudice before this ever gets before a jury, which means prejudged as exonerated of all charges. Lawyers know that all malicious lawsuits are frivolous. They believe that dismissing you with prejudice absolves them from any wrongdoing caused by a frivolous lawsuit.
Not only is the law full of vague ambiguities, but it is also full of precedent. If you are looking for precedent applicable to medical malpractice which proves my point, look no further than Byrom vs. Johns Hopkins Bayview Hospital. This is a $229.6-million plaintiff verdict, the largest in history, that results when vague ambiguities, such as 50% plus a scintilla, are left to the court and are unchallenged by defense attorneys.
The verdict is completely reversed because the appellate court rules that what happens during trial should never have been allowed. “Because we (the appellate judges) conclude that the evidence presented at trial was not sufficient to support findings of either negligent treatment or breach of informed consent, we hold that the trial court erred by not granting Bayview’s motions for judgment notwithstanding the verdict. We reverse the judgments.”
This brings up the question of how this could happen at all if defendants are supposed to be competently represented by a lawyer. The answer is your lawyer is not your lawyer until you make it clear that he or she owes you zealous advocacy and you are prepared to hold them accountable for doing otherwise.
If you are comfortable with vague ambiguity when lawyers represent you, you will get vague ambiguity because both the law and their surrogate client, the malpractice carrier, allow it. But, if it is 95% confidence that you want, you must make that clear from the beginning. I can work with you, your malpractice carrier, your attorney, and your medical expert. I can reduce the risk of a malpractice lawsuit against you by 70%. All you need to do is ask.
If you are skeptical, you have every right to be. However, put your skepticism aside when push comes to shove to give my risk management tool a chance. As a defendant in a malpractice case, you are entitled to the best defense possible, and there is no reason to accept vague ambiguity when 95% confidence is necessary. It starkly contrasts what your accusers have against you, surpassing anything your attorney can or will do for you unless you demand more.
As a worst-case scenario, to err is only human. If there is a medical error, you are now in the position to negotiate a fair and equitable settlement before there is an overzealous award or settlement by either a jury or your attorney at the behest of your malpractice carrier.
Not only are you in charge, but you make things right; you reduce the avoidable cost of claims for liability companies by at least 70% per year, and you enable them to reduce premiums by 30% for all qualified physicians. There is no need for tort reforms, politicians, policymakers, or the AMA. Only doctors can make this happen.
Howard Smith is an obstetrics-gynecology physician.
