Most recognize me for extolling the virtues of deductive reasoning in medical malpractice case review, but I never explain why I am so worked up over medical malpractice. Some would point out, “There are only 17,000 malpractice lawsuits filed per year out of a total of perhaps as many as 40 million lawsuits filed nationwide. Therefore, medical malpractice represents 0.04 percent of all lawsuits filed. What’s the big deal?” One reader actually admonishes me as a “crybaby.”
Here’s the big deal. According to one medical malpractice law firm (a very prominent one, I may add), these 17,000 medical malpractice lawsuits represent a much underutilized service and the number should be much higher. In fact, medical malpractice is the third leading cause of death in the U.S. This is frankly insulting for a doctor.
To add to this insult, according to them, virtually no frivolous claim of medical malpractice is ever represented by any plaintiff attorney because to do so is too expensive. In the meantime, this firm prevails in over $100 million of settlements and verdicts and announces: “If we don’t win, you don’t pay.”
They regard themselves as protectors of those who are at the mercy of physicians and insurance companies. For these attorneys, who never file a frivolous claim, between the lines is presumed: “It is OK if a frivolous lawsuit is occasionally represented as long as we make a percentage of $100 million.”
As proof for their claims, these particular attorneys point to the National Practitioner Data Bank. They claim that only 11,440 medical malpractice lawsuits are reported by the NPDB. It stands to reason that, since there are 17,000 malpractice lawsuits, 5,560 are not reported.
The NPDB only reports medical malpractice lawsuits that end favorably for plaintiffs. This is “cherry picking.” Because those not reported end favorably for the defendant, they must have no merit. If they have no merit, they must be frivolous. Since they are filed, they must be represented. So much for believing that no frivolous claims are represented.
Anticipating this contradiction, according to these attorneys, these 5,560 lawsuits are meritorious but do not prevail. Very few, if any, are frivolous. Whatever the number of frivolous claims may be, it is so trivial that it is essentially insignificant.
However, according to the AMA, cases reported by the NPDB represent 33.3 percent of all malpractice lawsuits; 66.6 percent are not reported. If 33.3 percent of cases are reported and represent only 11,440 lawsuits, when doing the math, there are 35,000 medical malpractice lawsuits filed per year. This is double the number these attorneys claim. Now, 23,560 medical malpractice claims are not reported. If there are frivolous claims among these 23,560 lawsuits, all are represented. Using these attorneys’ logic, this time, whatever the number of frivolous claims may be, it is no longer trivial or insignificant.
In addition, according to another source, 85,000 lawsuits are for medical malpractice, which is a five-fold increase over the 17,000 these attorneys claim. In 2022, the NPDB receives 66,000 claims and reports 22,000 of them.
Two facts emerge. First, the true number of medical malpractice lawsuits is unknown but it is greater than 17,000. Second, a claim that “no frivolous medical malpractice lawsuits are represented by plaintiff attorneys” is completely fabricated, as is the claim that none end favorably for the plaintiff. Claiming otherwise is patently absurd.
That being said, I know that my personal background risk as an OB/GYN is 10 percent/year, which corresponds to one lawsuit every 8.5 years. I know that, when sued in the past, the lawsuits have no merit.
In 2000, I decide to do something. At the very least, I can prove that a lawsuit is frivolous. When I do, a settlement is off the table, which, potentially, increases expenses for plaintiff attorneys. Conversely, if I prove that a lawsuit is meritorious, I will expediently and appropriately settle the case, which decreases expenses for the malpractice carrier. In both circumstances, I am best served.
Hence, I develop a decision-making method, based on hypothesis testing, which I call “CCC+C,” after its four principal functions: collate, compare, calculate, and certify.
When next sued, I use CCC+C and find no merit. In a conference prior to answering the complaint, I express my intention to the assigned defense counsel with the instruction that my intention is communicated to the plaintiff attorney. It is, and I am dismissed with prejudice within days after the response to the complaint is submitted.
If this works for me, it should work for any doctor.
Howard Smith is an obstetrics-gynecology physician.
