I am an OB/GYN and no stranger to malpractice litigation. As beleaguered as you may feel when you are sued for medical malpractice, the next hurdle to conquer after you are served is when you realize that your own attorney is prepared to throw you under the bus.

You do not deserve this. Whether a complication is an error of nature or a medical error, a complication always precedes a lawsuit. You are not immune. Even when meticulously adhering to the standard of care, there can still be a complication. It can only be an error of nature; however, when this error of nature is misrepresented as a medical error, a lawsuit follows. Granted, it is necessarily a frivolous lawsuit; however, no one knows this but you, and you are the one being sued.

You have a background risk of 8.5% per year of being sued. Seventy percent of all malpractice lawsuits are frivolous.

Unbeknownst to you, your interests are not the only ones represented by your defense attorney because accompanying every malpractice lawsuit are conflicts of interest. Your malpractice carrier is a de-facto client; it pays your legal fees. Sometimes, your employer is a co-defendant and, if self-insured, your employer is also your malpractice carrier. Defense attorneys rarely volunteer this information.

It is not just these conflicts of interests; your defense attorney regards you no differently than any other defendant, whether the lawsuit is meritorious or frivolous. They would rather play by the rules than innovate a winning defense for you even though justice is better served.

Playing by the rules means “a reasonable degree of medical probability.” The treatment you render is exactly as documented in medical records. The harm is the alleged complication. The standard of care is the duty to perform in accordance with how any prudent and competent practitioner would perform under the same circumstances. Causation is the likelihood that the treatment you render is or is not the proximate cause for the harm. Medical experts connect all these dots. The burden of proof is preponderance of evidence, which corresponds to 50% probability plus some undefined scintilla. Scintilla is at the discretion of jurors. This is “a reasonable degree of medical probability.”

When playing by the rules, what emerges is a strategy in which a juror is permitted to speculate whether the treatment you rendered probably comports with or departs from the standard of care. The standard of care depends on which expert the juror chooses to believe. Furthermore, the level of confidence for the decision being correct may be only 51%. Hence, the risk of making a wrong decision may be as high as 49%. Whether this serves justice remains to be seen, but it plays by the rules.

I adapt the scientific method to any lawsuit. The scientific method also plays by the rules. The treatment you render is still what is documented. Harm is still a complication; however, the complication is regarded as either a medical error or an error of nature. The standard of care is the same; however, it emphasizes duty. The duty is to render the safest, most effective treatment possible. Because the standard of care is the safest, most effective treatment, there can never be a medical error, and any complication can only be an error of nature. Medical experts are still necessary. Causation is the same. The burden of proof is still 50% probability plus an undefined scintilla. However, even though scintilla is at the discretion of the jury, in the scientific method, it is always 45%, which gives the burden of proof 95% confidence—the gold standard of the scientific method. For me, this is “a reasonable degree of medical certainty.” Certainty has greater validity than probability.

What emerges is a strategy that uses the same rules but in a different way. The scientific method methodically compares each phase of the treatment you render to a counterpart in the standard of care to statistically analyze any difference. There is no speculation over probabilities. Robust analysis proves or disproves a null hypothesis with 95% confidence. The null hypothesis states that there is no statistically significant difference between the complication from the treatment you render and an error of nature from the standard of care. If the null hypothesis is retained, your treatment comports with the standard of care. If rejected, your treatment departs from the standard of care.

Jurors undoubtedly have personal biases, and how they decide remains to be seen. However, jurors understand that 95% confidence is more definitive than 50% probability plus an undefined scintilla, and their understanding may be more impactful than their personal biases.

Not only is the scientific method the best defense for a frivolous lawsuit, but it is the best proof for a meritorious one. When the null hypothesis is disproved, the complication can only be a medical error.

This is what I can do for you. Until now, the aforementioned conflicts of interest strongly influence the defense strategy your lawyer creates for you. Until now, you must cooperate, as per the so-called “cooperation clause” in your malpractice insurance policy. Until now, you must keep silent, as per the very first advice from your attorney, which is do not talk to anyone about the lawsuit. However, cooperation is a mutual obligation, and so is communication.

If you believe that you are wrongly accused in a lawsuit, you have every right to prove your side with a decisive level of confidence of 95%. Communicating with me does not conflict with cooperation. Also, regardless of how your attorney regards any contact between you and me, they are still your advocate, and they must listen to you. I, not they, possess something that provides the decisive proof you desire. I propose to share it with you and with your attorney.

Howard Smith is an obstetrics-gynecology physician.