I write these words after a full week of jury deliberation in the Daniel Penny trial. I now realize that what I have been describing about medical malpractice litigation is a signal of a much more serious problem infecting the social order of the entire country. It goes far beyond 85,000 medical malpractice lawsuits filed per year and even the inability, or the unwillingness, of finders-of-fact to discriminate between a medical error and an error-of-nature.

In 1975, the School of Health Policy and Management at the University of California alludes to this problem. Medical malpractice lawsuits do not differentiate a medical error from an error-of-nature because of bias in the judicial threshold of preponderance of evidence. It has a “coefficient of causality” of 50 percent possibility plus an ill-defined scintilla. This does not neutralize bias; it promotes it. Clearly, something is wrong in 1975, which makes that which is “scientifically ineffectual” both fair and acceptable.

Fair, however, is an enigma. Fair is the enemy of good. Good is a coefficient of causality of 95 percent confidence. Fair is a coefficient of causality of 50 percent probability plus a scintilla. Perfect is 100 percent confidence. Perfect is also the enemy of good.

The problem is a tendency for today’s social order to accept bias by using a level of confidence of at least 51 percent as “fair” because only it serves what society has arbitrarily deemed to believe, namely, the notions of inclusion, equity, and diversity. The word “arbitrarily” is appropriate because this belief is truly capricious and illogical and is based on a widely held theory of a minority, but nevertheless influential, group of academics that America is and has always been biased when it comes to diversity. It matters not that history confounds this theory.

As a consequence, today, we, as a society, are unable, or are unwilling, to distinguish anything that conflicts with these notions, including right from wrong, with no greater confidence than 51 percent. We have redefined bias as truth and vice versa. As a result, everything has an acceptable margin for error of 49 percent, including guilt or innocence, as in the Daniel Penny trial. In 1975, the writing for this is on the wall.

Traditionally, the law considers “beyond the shadow of doubt” good for a capital crime. Its coefficient of causality is 95 percent, not 50 percent possibility plus some ill-defined scintilla. However, there are circumstances when an innocent victim dies or is injured from the negligent act of another. This is “criminal negligence.” It is decided on a “reasonable person standard,” which has a coefficient of causality of 50 percent possibility plus some ill-defined scintilla.

Today, December 6, 2024, the jury is deadlocked over whether or not Daniel Penny is guilty or innocent of murder. It just takes one source of bias, a single juror, who believes that “beyond a shadow of doubt,” as set by law, is “not fair.” It is not fair because it does not promote the notions of diversity, equity, and inclusion.

As soon as the charge of murder is dismissed by the judge and the jury is remanded to consider the charge of criminal negligence, Daniel Penny’s chances for a fair trial go out the window. For such a juror, it matters not what is traditional in the law. The coefficient of causality for diversity, equity, and inclusion is always 51 percent.

The key words are “innocent victim.” As soon as Jordan Neely threatens the lives of passengers on that subway, he is not an “innocent victim.” They are. The charge of criminal negligence may satisfy this one biased juror, but the outcome will likely be a hung jury.

If I am correct, a medical malpractice lawsuit is hardly a problem. We have a much greater problem.

Howard Smith is an obstetrics-gynecology physician.