A set of medical malpractice cases can be presented as examples of a legal strategy that may undermine a fair trial. In Case A v. Medical Center A, a 16-year-old girl conceives in and lives in a developing country until 17 weeks of gestation and receives no prenatal care until 20 weeks of gestation, when she arrives in the United States. At that time, she is found to have chlamydia.

Other infectious diseases endemic in low-resource settings, including Zika virus and the toxoplasmosis, other agents, rubella, cytomegalovirus, and herpes simplex (TORCH) complex, are known to adversely affect fetal development. However, because viral ribonucleic acid (RNA) declines over time, they can go undetected when screening is performed at 20 weeks.

A sonogram is consistent with a small-for-gestational-age fetus, oligohydramnios, and placental insufficiency. Progressive toxemia and the sonogram are indications for delivery. At 25 weeks, labor is induced. There is no maternal complication, and there is a vaginal delivery. Appearance, pulse, grimace, activity, and respiration (APGAR) scores equals zero and five. The newborn is transferred to the neonatal intensive care unit (ICU) and is later diagnosed with cerebral palsy. A lawsuit is filed.

The battle of reasoning in the courtroom

For the plaintiff attorney, abductive/inductive reasoning and preponderance of evidence are sufficient to conclude that there is a departure from the standard of care and that this departure is the proximate cause of cerebral palsy. Alternatively, deductive reasoning is presented as supporting the opposite conclusion. The null hypothesis is: “There is no statistically significant difference between the standard of care and the medical intervention.”

Any competent provider would know of conditions in the developing country that affect early fetal development. When comparing the standard of care, which is “delivery by either induction of labor or cesarean section for fetal and maternal indications,” to the medical intervention, which is “induction of labor, reserving cesarean section only for maternal indications,” the standard of care differs from the medical intervention. The mother is properly informed that, because of circumstances preceding admission to the hospital and because of the sonogram, the fetus may be adversely affected. The mother steadfastly refuses a cesarean section for fetal indications, but agrees to maternal indications.

The background risk for cerebral palsy is stated as 15 percent. The threshold risk ratio is 100 percent / 15 percent = 6.66. A relative risk of six is assigned to the medical intervention because there is said to be a 90 percent probability that the infant already has neurologic impairment. A relative risk of six corresponds to an incident risk of 90 percent. However, this is characterized as random error-of-nature until proven otherwise.

To prove otherwise, a one-sample t-test is used. Of 10 incident risks, nine = 15 percent and one = 90 percent. The population mean = 15 percent. Alpha = 0.05. Type-II error = 20 percent. The p-value = 0.171718. Because p-value > alpha, the null hypothesis is retained. On this reasoning, there is no medical malpractice and no causation. Merit = 95.7 percent. It is asserted that there is a 95.7 percent probability that all data supporting retention of the null hypothesis are reliable.

The abductive/inductive reasoning used by the plaintiff is adapted to CCC+C. The p-value = 0.171718; however, because of preponderance of evidence, alpha = 0.5. Hence type-II error = 0.65 percent. The null hypothesis is rejected, and conclusions are said to be consistent with abductive/inductive reasoning. On this view, there is medical malpractice and causation. Merit = 39.28 percent. Under abductive/inductive reasoning, the probability that all data supporting rejection of the null hypothesis are reliable is stated as 39.28 percent.

Ordinarily, merit = 39.28 percent versus merit = 95.7 percent is presented as prima facie evidence for no medical malpractice. When abductive/inductive reasoning is used, this is said to be obscured, making a legal strategy possible.

The consequences of diversionary legal strategies

According to Federal Rule of Evidence 403 and a corresponding Maryland evidentiary rule, plaintiff attorneys move that the patient’s immigration history is so prejudicial that conditions occurring in her country of origin should not be discussed in court. The presiding judge agrees. The jury does not hear all the evidence and returns a verdict described as the largest plaintiff verdict for medical malpractice in U.S. history: $229.6 million.

The defense attorney files a motion notwithstanding the judgment and then an appeal. The appellate court rules that the plaintiff attorneys failed to prove negligence, but it takes two years. Defense counsel’s firm makes no money, although plaintiff counsel features the verdict as a victory on its website.

Next is Case B v. Hospital B. The plaintiff is an attorney and represents himself. The case involves a hepatic duct injury during a laparoscopic cholecystectomy, necessitating a partial hepatic resection and the removal of 12 surgical clips from the anatomical location of the gallbladder. The operative report for the laparoscopic cholecystectomy is silent about visualizing the hepatocystic triangle, also known as the “critical view of safety.”

Ordinarily, these facts are presented as prima facie evidence for medical malpractice. However, in this case, they are characterized as res ipsa loquitur evidence. Proving res ipsa loquitur with deductive reasoning is said to require retaining the null hypothesis. Merit = 100 percent. When abductive/inductive reasoning is used, this is said to be obscured, and a legal strategy becomes possible.

The defense attorney moves that the case against Hospital B does not prove “corporate negligence,” which is “count 2” in the lawsuit. The presiding judge agrees. Summary judgment is granted and the case is closed. The plaintiff appeals the ruling. For three years, the case remains in limbo. Meanwhile, defense counsel is paid billable hours, and the injured plaintiff makes nothing and bears all transactional costs.

The staggering financial cost of medical malpractice

Medical malpractice litigation is described as an extortion racket worth at least $58 billion per year for both plaintiff and defense attorneys. The actual number of lawsuits that would draw attention to this practice is said to be unknown. Nevertheless, 22,000 are said to pay out at $2.55 million per claim. Even if one of three litigated lawsuits results in a payout, litigation is characterized as worthwhile. Furthermore, whether there is a payout or not, each case is defended. The average defense cost is stated as $30,000, corresponding to an additional $2 billion per year.

In both cases above, a fair trial is described as being undermined by a diversionary legal strategy that is said to be possible only when using abductive/inductive reasoning. This is described as a common strategy, but one that can be defeated by using deductive reasoning.

Howard Smith is an obstetrics-gynecology physician.