In ancient times, there were oracles and soothsayers. In the 1950s, risk management becomes a science. Nevertheless, there are 85,000 medical malpractice lawsuits filed per year. They are problematic, not because they overwhelm court dockets, but because a disproportionate number of claims are either frivolous or, if meritorious, are not represented. Also, each physician, myself included, has an 8.5 percent chance per year of being sued for a bad result that, likely, is not of their doing and for which $10 billion per year are paid in malpractice premiums.

To manage a problem, one must first identify the cause. The causes of all medical malpractice lawsuits are complications. Complications are inevitable; so are lawsuits. Some are random errors-of-nature, which are unpreventable. Others are systemic medical errors, which occur when medical interventions go astray. Instead of identifying the causes, namely, medical errors and errors-of-nature, “costs are identified.” Ultimately, when a culture develops in which there is greater emphasis on cost than on cause, a disproportionate number of all lawsuits have no merit and many, that do, have no representation.

It does not take an oracle or soothsayer to know that any error-of-nature or medical error needs to be regarded as a potential medical malpractice lawsuit and malpractice attorneys are sure to follow.

As long as there is a settlement value, a plaintiff attorney could not care less if a complication is a medical error. The same is true of defense attorneys, who are paid by malpractice carriers regardless of outcomes. As long as they are paid, defense attorneys could not care less either. Settlement values and payments are costs.

Medical experts are retained by both. As long as they are paid for their opinions, they could not care less for whom they opine. Opinions are costs.

The practitioner is usually the first to know of an unfortunate result and should respond accordingly. However, they take no action because they have medical malpractice insurance. As long as their premiums are paid, they could not care less if a complication is a medical error. Premiums are costs.

For malpractice carriers, as long as the claims-to-premium ratio keeps them solvent, they, too, could not care less. Claims are costs.

Today, the health care system consists of clusters of horizontally integrated networks of hospitals, medical institutions, and physician groups. Practitioners join networks mainly because networks pay their premiums.

Cost-effective health care is the objective of a network. To achieve this, networks promote “resource-based practice guidelines,” also known as “best practices.” A practice guideline is not a standard of care. It is, essentially, a shortcut for the standard of care designed to lower costs. As long as care is cost-effective, networks could not care less if a best practice is a standard of care. Standards of care are costs.

Some networks are self-insured rather than traditionally insured. When a malpractice lawsuit is filed, not only is the network a co-defendant by agency law, but it is also the insurance carrier by being self-insured. As long as practitioners adhere to best practices, networks could not care less if practitioners are more vulnerable whenever they encounter a complication. Oddly, neither could practitioners. For that matter, neither could the AMA. JAMA recently redefined “practice guidelines.” The evidence upon which practice guidelines are based is competence. In truth, however, practice guidelines are called “resource-based” because they are based on cost. Standards of care are based on competence. Competence is a cost; best practices are effectiveness.

In what possible universe would even an oracle or soothsayer in ancient times advise, “To avoid conflict, you must not act in your interest”? Yet, this is exactly what happens today.

It is not that the inability to differentiate a systemic medical error from a random error-of-nature goes unrecognized. On the contrary, an entire industry develops to exploit the problem—the medical liability litigation industry. It includes all the above.

The problem with risk management in medical malpractice today is that, despite the much heralded To Err Is Human, published in 2000, and because of the more recent restatement of rules for best practices by the AMA, risks of medical liability are no better managed than if they were managed by oracles and soothsayers.

Because of these things, it is no accident that the number of frivolous medical malpractice claims and the number of unrepresented meritorious claims are disproportionately high and that all fingers point to practitioners.

However, I developed a risk management strategy that measures and manages the causes of medical liability, namely, medical errors and errors-of-nature. It inculcates remedial attributes, notably, the duties in the standard of care, 95 percent confidence, calculated risks, documentation, and the scientific method. The strategy does not change the game but it levels the playing field. The medical liability litigation industry is no longer a player. The strategy was not developed for them; it was developed because of them. It emphasizes the importance of standards of care over “best practices.” Instead of medical experts being the big scorers, or lawyers establishing the rules, or practitioners as just other players, practitioners become the big scorers and they establish the rules. They are armed with the strategy even before a complication is encountered. Conventional methods primarily serve the interests of lawyers, as best illustrated by their own words: “If you have a phone, you have a lawyer,” “if we don’t win, you don’t pay,” and “if you need an advocate, just call us.”

In the final analysis, this strategy does not change the game, but it does usher in a new culture. I invite you to avail yourself to the strategy if you like. It does not matter to me what you do. The strategy is mine. I have no hesitation to use it and I am protected.

Howard Smith is an obstetrics-gynecology physician.