I learned the forbidden truth by searching “how many medical malpractice lawsuits are filed per year and how many are frivolous?” The answer is “17,000-20,000 and all are legitimate.” This answer is incongruous with seven facts.
The facts are: First, a complication causes a medical malpractice lawsuit. Some are medical errors; some are random errors-of-nature. Since an error-of-nature is not caused by negligence, a resulting lawsuit is frivolous. Second, a lawsuit starts with a claimant, who suffers a complication. Some have ulterior motives. Third, all attorneys regard themselves as zealous advocates.
Plaintiff attorneys represent claimants for a contingency fee and bear all the legal costs. Since it is too costly to represent a claimant with an ulterior motive, plaintiff attorneys subject all allegations to artificial intelligence. AI does not distinguish merit; it determines value. Depending on results, an allegation is selected for representation as a medical malpractice lawsuit. These are examined by a medical expert chosen by the plaintiff attorney. When contingency fees for settlements and plaintiff verdicts in medical malpractice cases are 2.5 billion per year, if a lawsuit is frivolous, cost is justified. Defense attorneys are just as bad. Merit notwithstanding, knowing that all lawsuits need to be defended, they contract with medical malpractice insurance companies. When defense attorneys make 1.1 billion per year from these contracts, zealous advocacy has little to do with the cases they represent.
Fourth, “We are not about the money; we are about peace of mind” is the mantra for medical malpractice insurance companies. Yet, when a complication is severe enough, the carrier would throw a defendant under the bus to settle a completely defensible case. It is all about their peace of mind and 25 billion in profit. Fifth, the background risk for a physician being sued is the number of lawsuits divided by the number of doctors. Although the number of lawsuits is at issue, there are 1 million doctors. When assuming 20,000 lawsuits, the background risk is 2 percent per doctor per year, which corresponds to one lawsuit per doctor every 50 years. Sixth, a significant number of physicians are sued more than once in a career, which is typically less than 50 years. Seventh, according to the National Practitioner Data Bank (NPDB), every year as many as 60,000 settlements and defense verdicts are reported. According to the 66.6 percent AMA, 66.6 percent of all lawsuit are not reported because they are dropped, dismissed, or lost at trial. 66.6 percent is 120,000 lawsuits; 100 percent is 180,000.
Nuanced as these facts are, they are, nonetheless, pertinent. Putting them together and allowing for lag-time between filing a lawsuit and its outcome, undoubtedly, the number of lawsuits actually filed per year must be greater than 17,000-20,000 and some must be frivolous.
There is no single databank for lawsuits, meritorious or otherwise, even though this is critical information and criteria for tracking are easily determined. It is as though there is a medical liability litigation industry, which profits by keeping this data secret. The economy of this so-called medical liability litigation industry is 627 billion per year, which is 13 percent of the cost of health care, 2 percent of the GDP and 1,120 percent of the 56 billion determined as the cost of medical liability. It is curious that this 56 billion is not higher and has not changed since 2010. This figure protects the forbidden truth.
Assuming that 180,000 lawsuits are filed per year, a doctor’s background risk is 18 percent per year, or one lawsuit every 5.5 years. The forbidden truth is there are more than 17,000-20,000 lawsuits filed per year and some are frivolous.
Knowing the forbidden truth, I develop “CCC+C” (Collate, Compare, Calculate, and Certify), to protect myself. CCC+C is not to be confused with another protocol, called the “four Cs” (Compassion, Communication, Competence, and Charting). CCC+C’s protocol is quantitative and objective. The four Cs’ protocol is qualitative and subjective.
When sued, I make certain that both the plaintiff and defense attorneys understand that CCC+C applies to me, alone, and not to any co-defendant named in the lawsuit. It not only distinguishes me from them, it distinguishes a medical error from a random error-of-nature with 95 percent confidence. CCC+C is peer reviewed and published in professional journals, most recently in the Healthcare Leadership and Management Journal. Both attorneys come to know that, regarding me, this lawsuit is either frivolous, resulting from an error-of-nature, or meritorious, resulting from a medical error. If caused by me, I agree to settle. If not, “bring it on.” Days later, I am dismissed with prejudice. CCC+C serves me just fine.
Howard Smith is an obstetrics-gynecology physician.
