“No medical malpractice lawsuit is frivolous,” is the narrative echoed by plaintiff attorneys. Medical malpractice lawsuits are vastly underrepresented. Also, because frivolous lawsuits are too expensive to litigate, expense is a natural deterrent for filing one. Plaintiff attorneys have controlled this narrative for as long as I’ve been in practice since 1972.

Recently, I examined the veracity of this claim. Indeed, there are 66 million civil lawsuits filed in the U.S. and, of these, 17,000-20,000 are said to represent medical malpractice. If true, it may be that the number of medical malpractice lawsuits is underrepresented and there should be more. However, to say that none are frivolous defies reason. Some are undoubtedly frivolous, but that number is unknown.

The word “frivolous,” itself, means “without substance and not worthy of serious consideration.” In regard to medical malpractice, all lawsuits have one thing in common: There is always a complication. It may be a medical error caused by a departure from the standard of care, in which case, a resulting lawsuit has substance. Or, it may be a random error-of-nature caused by circumstances out of anyone’s control, in which case, a resulting lawsuit does not. If it has no substance, it is not worthy of serious consideration. The lawsuit is frivolous. However, to plaintiff attorneys, who control the narrative, this never occurs.

“Baseline risk” is a simple calculation. It is the number of unfortunate occurrences in a given time divided by the number of all those who assume the risk. In medical malpractice, baseline risk = the total number of malpractice lawsuits filed per year $\div$ the number of all practicing physicians. There are 1 million practicing doctors. If there are 20,000 medical malpractice lawsuits, the baseline risk is 2 percent per doctor per year, which corresponds to 1 lawsuit per doctor every 50 years. So what’s the big deal? After all, there are 66 million other civil lawsuits filed per year. The 17,000-20,000 medical malpractice lawsuits hardly bog down court dockets.

Nonetheless, this is inconsistent with three observations:

• A typical career is about 50 years. Many physicians are sued more than once in a career.
• The National Practitioner Data Bank (NPDB), to which all indemnity payments are reported, documents as many as 60,000 settlements and plaintiff verdicts per year.
• According to the AMA, 66.6 percent of all lawsuits have no indemnity payment because they are dropped, dismissed, or are defense verdicts and are not reported to the NPDB.

Doing the math, there is a total of 180,000 medical malpractice lawsuits and a doctor’s baseline risk is 18 percent per year, or 1 lawsuit per doctor every 5.5 years. This is the big deal.

However, plaintiff attorneys control the narrative. They represent claimants through a contract based on a contingency fee and are paid a percentage of a settlement or a plaintiff verdict. They forgo charging clients “attorney fees;” however, their clients often bear other “litigation costs” regardless of outcome. Some claimants are not represented by a plaintiff attorney, not because a claimant harbors some nefarious motive, but because the injury is not worth the expense of litigation. Collectively, plaintiff attorneys make $2.5 billion per year from contingency fees, most of which are from settlements. They have a conflict of interest, i.e., the value of a case vs. the merit of a case. The narrative hides this conflict of interest.

Defense attorneys are no better. They represent defendants through a contract with a malpractice carrier based on billable hours. Collectively, defense attorneys make less money than plaintiff attorneys, about $1.1 billion per year, and they have a conflict of interest, i.e., the defendant physician vs. the insurance carrier. The narrative suits them.

Last, are malpractice insurance companies. They insure physicians, who seek peace of mind. However, when a settlement of convenience is to the advantage of the carrier, it is not about a client’s peace of mind. Carriers, too, have a conflict of interest, i.e., their profit vs. their insured. The narrative suits them, as well.

The logical conclusion from these facts is 17,000-20,000 lawsuits filed per year is a fatuous number, and, in all fairness, the true number is unknown; however, more than just a few are frivolous. The narrative is calculated so that we do not know this.

We are not supposed to know that only those claimants, who satisfy financial standards, are represented, regardless of medical error, error of nature, or nefarious motive. We are not supposed to know that physicians, who are sued because of an error-of-nature, at best have justice delayed and at worse, if forced to settle, have justice denied. Other than total medical liability costs of $56 billion per year, we are not supposed to know that the total economic impact of medical malpractice lawsuits adds to the cost of health care, which, today, is $4.9 trillion per year.

We are not supposed to know these things because, if we do, we may change the narrative. For example, I developed “CCC+C.” CCC+C (Collate, Compare, Calculate, and Certify) is not to be confused with another protocol, called the “4 Cs” (Compassion, Communication, Competence, and Charting). CCC+C changes the narrative by distinguishing a medical error from a random error-of-nature with 95 percent confidence. CCC+C is peer reviewed and published in professional journals, including the Journal of Legal Medicine, the American Journal of Statistics and Actuarial Science, and, most recently in the Journal of the American Association for Physician Leadership.

When I use it, if I depart from the standard of care, I will agree to settle. Otherwise, I will never agree. This changes the narrative for the defense counsel and the malpractice carrier. Once I change the narrative, I am exclusively represented by one attorney and any codefendant is represented by another. A codefendant is free to settle. Soon afterwards, I am dismissed with prejudice. CCC+C serves me just fine.

Howard Smith is an obstetrics-gynecology physician.