The first book I ever read was The Last Angry Man. I could never have imagined then how it would influence me now.
It is about a fictional character, Dr. Samuel Abelman. He is a general practitioner practicing in New York City during the 1950s. He is in the twilight of a career that spans fifty years of commitment to the Hippocratic Oath.
In the 1950s, the emerging professional trend is specialization. He regards specialization as antithetical to the Hippocratic Oath because the practice of medicine does not separate patients into different categories. He is outspoken, and consequently, he is disrespected and even maligned by elite power brokers who profit from specialization. In today’s lexicon, they try to cancel him.
In Dr. Abelman’s day, elite power brokers profit when the patient/doctor relationship is built on specialization. Today, they profit when the patient/doctor relationship is eroded. This trend is even more antithetical to the Hippocratic Oath. I wonder what Dr. Abelman would do.
An example of such erosion is when health systems consume private practices. However, nothing erodes the patient/doctor relationship more than unfortunate medical outcomes, especially when a random error of nature is made to appear as a medical error. This is the foundation of a malpractice lawsuit. This is also why private practices are consumed by health systems.
Like Dr. Abelman, our jobs are to improve and, sometimes, save lives by practicing quality medicine. Unfortunate outcomes are inevitable even when practicing quality medicine. There are 86,000 malpractice lawsuits per year. By joining health systems and agreeing to comply with their rules, we are covered under the health system’s liability umbrella. In return, we surrender the relationships we developed with our patients to the health system, which gains enormously.
Most medical malpractice cases are built on departures from empiric standards of care. When we join a health system, we agree to practice according to its “resource-based practice guidelines” whether a guideline satisfies the standard of care or not. The myth is adherence to guidelines protects from medical errors. In truth, adherence to resources-based practice guidelines protects doctors less from medical errors than it protects health systems from excessive expenditure of resources.
Whether adhering to standards of care or guidelines, complications are inevitable, and so are lawsuits. Those who read my earlier post know I propose a specific risk-management protocol.
In a nutshell, the burden of proof is a preponderance of the evidence, which corresponds to 50% probability plus an additional scintilla. Scintilla is intuitive. Intuition is without conscious thought and is what one believes to be true. If a medical expert in a lawsuit believes the measure for scintilla to be only 0.01%, it is still sufficient to satisfy the burden of proof, but 50.01% probability is insufficient to confidently separate a random maloccurrence from a medical error.
Such a low threshold for confidence of proof is curious when the scientific threshold is 95%. So, I develop a risk management tool for objective decision-making to truly separate a random maloccurrence from a medical error. Rather than adding some self-intuited measure to the burden of proof, the measure is objective. That measure is 45%, which, when added to the baseline of 50% probability, equals the scientific standard of 95% confidence. Unlike intuition, this analysis is concrete proof and is open to examination.
Plaintiff attorneys, defense attorneys, and medical experts are free to use scintilla as they see fit, but they do so at their own peril because relying on intuition is an overt exploitation of the ambiguity in the burden of proof, and it stands in stark contrast to 95% confidence.
Being licensed in Maryland, I present my model to the medical society. They dismiss it without hesitation. Next, the Board of Physicians of Maryland not only dismisses it but delivers a subtle threat by advising me to consult legal counsel before proceeding further.
I expected more. We, physicians, ordinarily entrust such interests to bureaucrats who run organized medicine. They rhetorically claim to be our advocate and resource when they interact on our behalf with CEOs of malpractice carriers, CEOs of health systems, politicians, the Governor, leaders in the defense and plaintiff bars, and the media, just to name a few. I did not expect my idea, which is in keeping with the best interests of physicians, patients, and jurist prudence, to be embraced without investigation, but I never expected it to be met with such consternation.
This creates a suspicion of impropriety. Should it be found that some executives of the medical society are lawyers or some prominent committee heads earn incomes as expert witnesses in lawsuits, are on the boards of directors of malpractice carriers, or are connected to the Board of Physicians in Maryland, my methods may, indeed, be incompatible with their interests. In practice, this is precisely what I find.
When an ordinary physician, like myself, brings an idea addressing a problem largely ignored by power brokers to the attention of power brokers, and that idea is summarily dismissed, and the physician is warned to cease and desist, it is because these power brokers benefit from or even cause the problem. In today’s lexicon, this is cancel culture and echoes The Last Angry Man.
What I describe is how cancel culture is used by elite power brokers to control physicians. Most of us have no idea. These power brokers keep their boots on our necks and exploit our outcomes from medical interventions. My model confidently separates a medical error from random chance and threatens their interests. The medical elite need to change their attitudes, or we need to change our affiliations.
Howard Smith is an obstetrics-gynecology physician.
