Medical malpractice is big business in the United States. The only database monitoring medical malpractice is the National Practitioner Data Bank (NPDB). The NPDB’s annual report claims only 13,000 medical malpractice lawsuits. The NPDB was first established by the Health Care Quality Improvement Act in 1986. It was created by politicians (attorneys) for the express purpose of tracking specific adverse actions against health care practitioners.
Only 13,000 lawsuits are hardly “big business.” However, according to the American Medical Association (AMA), these account for 33.3 percent of all medical malpractice lawsuits litigated. The real number is 40,000. Of these, 27,000 do not prevail and are not part of the report. According to another source, as many as 85,000 medical malpractice lawsuits are filed per year and the raw number reviewed by plaintiff attorneys is even greater.
However, the 40,000 cases, which are litigated, are all represented by a plaintiff attorney. Since plaintiff attorneys represent cases on contingency, they only make money when a case prevails. Total awards are $5.04 billion. Of this, $1.7 billion is contingency fees.
The natural presumption is that merit is the reason a claim will prevail. If so, the merit of a claim is important in the decision to represent one. However, since only 13,000 pay out, either plaintiff attorneys cannot determine merit with any precision or merit has a different meaning for them. Also, since the average award is $3.9 million, even if one out of three claims pays out, representing all three makes financial sense.
Before deciding to represent a case, it is vetted by artificial intelligence, such as Anytime AI. Artificial intelligence determines a financial value for a complication.
Next, claims are examined by medical experts retained by plaintiff attorneys. Medical experts may be scientists, but they use preponderance of evidence, which is a benchmark for lawyers and is traditional in abductive/inductive reasoning. It corresponds to “more likely than not,” a tipping point for confidence slightly greater than 50 percent. Therefore, vetting by medical experts establishes merit with no greater precision than this.
Consequently, a claim reviewed by a medical expert has the illusion of merit. However, the ultimate decision for representation is made by the plaintiff attorney. Undoubtedly, claims are rejected on the basis of low merit; however, cases with merit are rejected for low financial value. It follows that the financial value of an injury is as important, if not more important, as the merit for negligence.
Nevertheless, because all claims are first vetted by AI and then by medical experts, according to plaintiff attorneys, all claims are “legitimate.” Legitimate means there is an injury. Meritorious is different; it means reliability in data and material facts in the allegation of negligence that relate to the injury. Lawyers comingle “legitimate” and “merit.” Because of this, the merit in an allegation of negligence, not the act of negligence, itself, is the driver of costs in the medical malpractice system.
All cases which plaintiff attorneys represent, meritorious or not, are defended. However, defense attorneys also use medical experts, who are no better at distinguishing an error-of-nature from a medical error than are the experts retained by plaintiff attorneys. Hence, some cases are vigorously defended, when they should be expediently settled. Some are conveniently settled, when they should be vigorously defended. In either event, defense attorneys always make money because they are retained by a doctor’s medical malpractice insurance carrier and, win, lose, or draw, they are paid per billable hour. The average defense cost is $30,000, for a total of $1.2 billion per year.
If this is not enough, a trial is recognized as the ultimate forum for merit. Even then, merit is less of a factor as one might expect. Because of “permissible inference” and judicial rulings, jurors fail to consider evidence when other notions are regarded as more important by them or a judge. Hence, a non-meritorious claim of negligence can prevail at trial. The longer it takes, the larger the award, the higher the contingency fee, and the greater the billable hours. Also, more interest is earned on reserves established by malpractice carriers.
In the contemporary system of medical malpractice litigation, abductive/inductive reasoning is the benchmark, litigation of a claim is inefficient, and transactional costs are substantial. Not to mention that some defense verdicts, plaintiff verdicts, and settlements are unwarranted and some meritorious claims are never represented. This is a marketplace worth between $56 billion to over $100 billion per year and is “big business” by any standard. Because of rules in the marketplace, anyone who uses the health care system, ultimately, pays $56 billion to over $100 billion per year.
These problems in medical malpractice litigation are acknowledged by the culture. Tort reforms are passed and decision-making methods are developed. Tort reforms are oriented toward such things as awards, standards for expert witnesses, statutes of limitations, and contingency fees. Decision-making methods such as the “Four Cs” (compassion, communication, competence, and charting) are oriented toward “so-called” best practices. Neither are oriented toward the cost driver, which is merit or the lack thereof.
Merit is not evidence of negligence in a medical intervention, per se. Rather, it is the merit in an opinion of negligence. Medical errors cause lawsuits; however, so do errors-of-nature. Only medical errors are negligent. Abductive/inductive reasoning, which is traditional in law and the foundation for tort reforms and decision-making methods, cannot distinguish a medical error from an error-of-nature. Deductive reasoning, however, can.
CCC+C (collate, compare, calculate, and certify) is a decision-making method which does distinguish a medical error from an error-of-nature. It is deductive reasoning and is not to be confused with the “Four Cs,” which is abductive/inductive reasoning. CCC+C is modeled on ACE+V (analyze, compare, evaluate, and validate). ACE+V is a forensic decision-making method. It determines fingerprints on evidence and distinguishes which evidence is relevant and which is circumstantial. Likewise, CCC+C determines fingerprints on a complication and distinguishes which complication is a medical error and which is a random error-of-nature.
Howard Smith is an obstetrics-gynecology physician.
