It is beyond a doubt that, in many states, including the state of Maryland in which I am licensed, tort reforms for medical malpractice occupy a good part of the legislative agenda. In Maryland, tort reforms bring:

• Caps: The cap on noneconomic damages is first set at $650,000, and increases by $15,000 each year. Medical malpractice has a separate cap structure; however, the cap is $905,000. There must be an award greater than $905,000 on noneconomic damages before this law applies.
• Alternative disputes: Before a medical malpractice lawsuit proceeds in court, the claim is filed with the Maryland Health Care Alternative Dispute Resolution Office. This delays a trial by several months to over a year, during which time insurance companies earn interest.
• Certificates of merit: Within 90 days of filing the claim with the Maryland Health Care Alternative Dispute Resolution Office, the plaintiff’s attorney must file a certificate of merit from a qualified medical expert. Why not at the time of filing?
• Expert witness rules: The “20 percent rule” limits a medical expert from spending more than 20 percent of professional time performing as an expert witness. The 20 percent rule becomes the 25 percent rule. What next, the 30 percent rule?
• The collateral source rule: Damages are reduced by the amount the plaintiff receives from other sources as remedies for the same injuries.
• Contributory negligence: A plaintiff is barred from recovery if they are found to be even slightly at fault for their own injury.

These tort reforms are enacted, primarily in response to concerns about the rising cost of medical professional liability insurance premiums in Maryland. Nevertheless, while premiums stabilize, they have increased since 2019 despite tort reforms. Medical malpractice premiums never decrease and continue to range from $10,000 to over $100,000 depending on specialty. Also, the number of cases reviewed by the Maryland Health Care Alternative Dispute Resolution Office has remained 600-650 per year since 2005. At this rate, by 2030 every practicing physician in Maryland will be sued. It could be worse because Maryland ranks 24th out of 50 states for medical malpractice litigation. The largest plaintiff verdict in history, $229.6 million, was awarded in Maryland.

The Medical Society of Maryland, MedChi, is particularly proud of its involvement in tort reforms. In all due respect, as a physician who has been sued, I could not care less about a $905,000 cap, alternative dispute options, certificates of merit, 25 percent rules, collateral source rules, or contributory negligence. I protect myself and innovate CCC+C (collate, compare, calculate, and certify). Each time I use it, I am dismissed with prejudice days later.

Some time ago, I had the privilege to teleconference with the CEO and selected board members of the Medical Society of Maryland to present CCC+C. One board member commented that “this is something before its time.” Another commented: “This is a game changer.” CCC+C is not “before its time” nor is it “a game changer.” CCC+C is a winning strategy playing the game by “their” rules. What becomes obvious to me is, while each sense the value of CCC+C, none are committed to physician advocacy enough to do more than give CCC+C lip service. Finally, the CEO chimes in: “What evidence, other than your own experience, can you provide to show that CCC+C works?” When he asks this question, I know the teleconference is over. I request this teleconference precisely because I need the imprimatur of the medical society for CCC+C to go further.

To that effect, if state legislators and medical societies believe that tort reforms are the only answer to the waxing and waning of a 50-year-old medical malpractice crisis, they should appreciate the following as a model for a future tort reform. The model is based on CCC+C.

A qualified medical expert for either the plaintiff attorney or the defense attorney prepares a certified report that establishes the decision-making process upon which opinions are formed. That report includes:

• The presenting medical condition.
• The applicable standard of care (duties): The report acknowledges that the standard of care, by itself, has the potential for errors-of-nature, which include pre-existing medical or psychiatric disorders. These can occur unrelated to any departure from the standard of care.
• The medical intervention in question (potential breaches of duty): The report includes what is recorded in medical records and what is not recorded when it should be. Pre-existing conditions and the management to prevent them or deal with them should they emerge, are relevant. The risk that a medical intervention can exacerbate a pre-existing condition and that failing to embark on the medical intervention has a greater risk than the risk of exacerbating the pre-existing condition, are relevant. Whether the patient is in agreement with taking said risks, is relevant. These are all matters of informed consent and should be recorded in medical records.
• The specific injury or injuries: Physical or psychiatric, which follow the medical intervention, including the exacerbation of a pre-existing condition.
• The burden of proof used to decide that the medical intervention is the proximate cause of medical injuries, psychiatric injuries, or pre-existing conditions: The report includes the associated potential error rate of being wrong. For instance, if the burden of proof is “preponderance of evidence,” which is a legal standard, the error rate is 50 percent. If the burden of proof is “statistical confidence,” which is a scientific standard, the error rate is 5 percent.

As a tort reform, these four criteria of decision-making achieve more than tort reforms already passed. It establishes behavior for finders-of-fact during each and every legal proceeding.

Howard Smith is an obstetrics-gynecology physician.