Doctors are plagued by medical malpractice lawsuits. Every year, there are 85,000 lawsuits filed, of which 66.6 percent are frivolous. Each doctor has an 8.5 percent chance per year of being sued.

In the course of my efforts to make a difference, I personally contact 50 of the nation’s most prestigious medical malpractice law firms, both plaintiff and defense firms. I make it known that I developed a risk management process and that I would like to explore the possibility of collaborating with them in some capacity.

Most of these firms represent themselves as having years of experience in medical malpractice litigation. In fact, collectively, they represent over 2,000 years of experience and expertise. Collectively, they all retain thousands of qualified, preeminent, board-certified medical expert witnesses in virtually every medical specialty and subspecialty; in fact, they each have a stable full of them, and many are redundant.

Defense firms acquire cases from malpractice insurance companies, with which they do business, and are paid billable hours. They always get paid.

Plaintiff firms seek out clients and are paid a contingency fee. Some plaintiff firms unabashedly claim millions of dollars of settlements and verdicts on their websites. They advertise, “If we don’t win, you don’t pay.”

In my contact with both, I ask one question, which I would expect any attorney to be able to answer and which is never addressed on any of their websites: “What do expert witnesses, who they retain, do, which sets them apart from other medical experts?” By this question, I do not mean “what do medical experts do?” I know what they do. At best, medical experts are nonpartisan. At worst, they are “hired guns.”

I express that, in my humble opinion, because all medical experts are scientists, they should do what scientists do, not what lawyers who hire them tell them to do. According to Dr. Paul Brouardel, the father of forensic science, “If the law has made you a witness, remain a man of science … bear testimony within the limits of science.” Bearing witness within the limits of science follows four general principles.

1. Because the standard of care is the benchmark for competence, it stands to reason that any associated complication is a random error of nature and not an actionable medical error. This acknowledges that there are no medical errors with excellence, and random errors of nature “just happen.” Even standards of care are not immune to one.

2. Medical interventions should be facsimiles of standards of care. Both are separated into 10 counterpart phases; each phase represents a particular duty. Depending on circumstances, it stands to reason that a difference between the standard of care and the medical intervention does not necessarily represent a breach of duty. Sometimes, a “calculated risk” is necessary and a risk/benefit ratio needs to be objectively considered in this determination.

3. Because of the quantitative nature of the risk/benefit ratio, when the standard of care is compared to the medical intervention in a systematic way, the two are either the same or are different. Differences between a phase in the standard of care and the corresponding phase of the medical intervention are objective, quantitative, and measurable. Even when there is a difference, it stands to reason that, by following a properly executed calculated risk, the medical intervention is not a breach of duty. There may be a difference from the standard of care, but the difference is not statistically significant. Any complication that follows is an error of nature until proven otherwise.

4. “Until proven otherwise” is proving statistical significance. These differences from the standard of care represent the medical intervention. There is a sample of 10 quantitative measures. The sample is scrutinized using statistical analysis. If there is a statistical difference, there is a medical error, and the medical intervention departs from the standard of care. If there is no statistical difference, the opposite is true. The burden of proof corresponds to 50 percent probability plus a scintilla. Scintilla has a discretionary value. In statistical analysis, scintilla is 45 percent. Hence, the level of confidence is 95 percent, which is “the sine qua non” of science.

Understanding that this is what a medical expert, who is a scientist, should do, I ask: “Can any one of the hundreds, if not thousands, of medical experts, who these attorneys retain, differentiate a medical error from a random error of nature with this same competence?”

I go on to explain that I doubt so. I, alone, adapt the scientific method and I make this distinction. My protocol is peer reviewed. Even though their medical experts are not able to make this distinction, I am willing to share my protocol.

If I spark just a scintilla of intellectual curiosity, any one of these attorneys should want to discuss this further to explore the possibility of promoting my protocol to their medical experts. It only takes a phone call, and they all have my contact information.

After three months, not a single law firm, who I contact, responds. Interpret this as you may, but to me it speaks volumes. What underlies their silence remains to be seen, but these attorneys, regardless of the side they represent, could not care less about the merit of a case. This is pathetic.

Howard Smith is an obstetrics-gynecology physician.