Despite the heralded To Err Is Human, there is still no effective risk management strategy to prevent medical liability. Past discussions on KevinMD have explored a risk-management strategy that differentiates medical errors from random errors of nature with 95 percent confidence. Like any decision-making method, this strategy has weaknesses that deserve mention.
Weaknesses of the strategy
1. Standards of care are empirical and adaptable. A medical intervention that differs from the standard of care does not necessarily mean a departure from it. A calculated risk may be undertaken to avoid a medical error, aligning with the evolving nature of the standard of care.
2. There is no attribution for the incident risk of a medical error in any specific medical intervention. Such incident risks are innovative concepts that are not currently incorporated into standard assessments.
These weaknesses, however, are no different from those found in a plaintiff’s legal strategy.
Strengths of the strategy
1. The heuristic behind the strategy minimizes the adaptable nature of the standard of care. By focusing on quantifiable evidence, it prevents arbitrary interpretation.
2. The notarized summary report legitimizes the strategy. It ensures that evidence is handled objectively—quantitatively rather than qualitatively. The report meets all the criteria for valid evidence as defined by the Supreme Court’s Daubert Decision and aligns with the Rules for Civil Procedure should a case proceed further.
3. The burden of proof remains preponderance of evidence. The probability standard is 50 percent plus a scintilla—a metaphor for jurors that remains at the discretion of finders of fact under judicial instruction.
4. Within the heuristic, scintilla is defined as 45 percent. Even if left to a jury’s discretion, common sense dictates that 95 percent confidence holds greater probative value than 50 percent plus an undefined scintilla.
5. If the risk management strategy proves no medical error and a lawsuit follows, the plaintiff’s argument carries a higher risk of type-1 error. Should a plaintiff’s counsel attempt to use the heuristic but manipulate the scintilla, their probability of error increases to at least 49 percent—compared to the 5 percent margin of error in the risk management strategy. Transparency in this process allows a jury to detect any misuse of heuristics.
6. The risk management strategy benefits malpractice carriers before litigation begins. Physicians are contractually obligated to notify malpractice insurers of potential lawsuits early. While not required, submitting a notarized summary report before a claim is filed demonstrates due diligence.
7. Defense attorneys are alerted to potential cases before formal lawsuits are filed. Defense attorneys are typically not retained until a lawsuit is active. If a malpractice carrier provides the notarized summary report to legal counsel, defense strategies may align more closely with the objective findings, rather than relying on generic legal language.
8. If a case proceeds to trial, the strategy empowers the practitioner. It clarifies to the jury that for the practitioner, scintilla is 45 percent, whereas for the plaintiff, it lacks a defined value. This distinction helps jurors objectively assess which side presents the strongest evidence.
9. In an ideal scenario, the strategy deters frivolous lawsuits while ensuring meritorious cases are resolved efficiently. With the strategy in place, weak claims are likely to be dismissed quickly, while valid cases are more likely to settle without unnecessary legal battles—reducing costs for all parties involved.
In short, this risk management process has more strengths than weaknesses.
The problem with current risk management in medical malpractice
The issue is not the lack of risk managers or strategies but the absence of a standardized approach to identifying medical errors versus natural mal-occurrences.
Hospitals and health care networks have risk management committees and morbidity and mortality conferences. Law firms employ intake managers and medical experts. Malpractice carriers rely on actuaries. Legislators, policymakers, tort reform advocates, governmental agencies, medical societies, and peer review boards all play roles in the system.
Yet, despite these structures, two-thirds of all medical malpractice lawsuits in the United States fail to distinguish medical errors from errors of nature. Each so-called risk manager measures and manages only what serves their niche—typically cost or settlement value—rather than the root causes of medical liability.
This strategy is the only risk management tool that directly measures and manages the causes of medical liability—medical errors and errors of nature—serving the only interest that truly matters: justice.
Howard Smith is an obstetrics-gynecology physician.
