All medical malpractice lawsuits stem from complications caused by medical interventions. Some complications are random errors of nature, which are unpreventable. Others are systemic medical errors, caused by medical interventions gone astray. Clinically, a medical error and an error of nature are indistinguishable. Herein lies the problem in medical malpractice.

It is not that the inability to differentiate a systemic medical error from a random error of nature is unknown. On the contrary, an entire industry of plaintiff attorneys, defense attorneys, medical experts, malpractice insurance companies, health care networks, and risk managers—henceforth known as the medical liability litigation industry—exploits it.

There is no need for risk managers in medical malpractice lawsuits. Risk management starts with the doctor. Included in a medical malpractice insurance policy is the “reporting clause.” It establishes the duty of an insured physician to promptly inform the carrier of a claim. This is generally interpreted as after the doctor is first served. However, the doctor first knows of a threat when the complication first occurs. Because of this clause, the first step in risk management should be reporting the claim as soon as a complication is encountered.

The doctor must painstakingly investigate the medical intervention and the resulting complication to determine if the medical intervention comports with the standard of care and if the resulting complication is from a medical error or is a random error of nature. This requires the scientific method, hypothesis testing, and 95 percent confidence. These should be familiar to all physicians because they are scientists.

Then, the doctor prepares a report, meticulously detailing the decision-making process. Furthermore, the report is notarized. The notarized report is sent to the carrier by registered mail. As unconventional as reporting an incident to a carrier in this fashion might be, it still is in keeping with the reporting clause and it is not prohibited. In fact, it is due diligence.

Once the report is received by the carrier, it remains to be seen what the carrier does. It can examine the report for validity, or it can do nothing. It cannot, however, ignore it. Doing so is contrary to its due diligence. If nothing more, it can never be claimed that the carrier was not informed.

If a lawsuit follows, of course the complaint is transmitted to the carrier. The next step in risk management is for the doctor to speak to the attorney assigned by the carrier. Presumably, the carrier supplies the notarized report to this attorney. In this discussion, the doctor makes clear to the attorney all the details in decision-making based on the scientific method, hypothesis testing, and 95 percent confidence, as well as definitively stating that a settlement of convenience is off the table.

Furthermore, because the doctor is confident in this decision-making, the doctor insists that answers to the complaint include what is stated in the report. It matters not if this reveals the defense strategy to the plaintiff counsel. All the better, because it raises the bar for the plaintiff counsel, who ultimately has the burden of proof. Doing so also opens the door for a dismissal with prejudice or for a summary judgment before trial.

Today, some legislators propose “loser pays” legislation as a solution. This would discourage frivolous lawsuits because no one wants to pay the defense cost. For these politicians, “loser pays” is the game changer. Even so, loser pays legislation will likely not pass.

In the future, the strategy discussed herein can do the same thing before a complication is encountered and without arduous public debate associated with legislation. It encourages a “prevailing party agreement,” in which it is mutually agreed upon at the first doctor appointment that, in the event of a future legal dispute between the patient and the physician, the legal cost of a prevailing party in a lawsuit is paid by the losing party. This sets a condition for the patient-doctor relationship that was never considered before. If patients object, patients simply find other physicians who do not require this condition.

This is an example of how to succeed without changing the game. This strategy simply levels the playing field. It empowers physicians. Basically, it distinguishes an error of nature from a medical error and a standard of care from a medical intervention gone astray. Also, it better serves the interest of justice. It is no accident that the number of misrepresented frivolous medical malpractice claims and the number of unrepresented meritorious claims are disproportionately high. Not only can frivolous lawsuits be derailed from the get-go, but all meritorious lawsuits are likely to be represented and are just as likely to be expeditiously settled. The average cost of legal transactions, premiums, claims, and health care will be reduced. Finally, intentionally representing a frivolous claim can be proven and has consequences.

Rather than the interest of justice, the status quo serves the interests of malpractice attorneys, best illustrated in their own words: “If we don’t win, you don’t pay.” This strategy ushers in a new culture and, try as one may, there is nothing anyone can do to stop it.

Howard Smith is an obstetrics-gynecology physician.