Thirteen thousand medical malpractice lawsuits with billions of dollars as either plaintiff verdicts or settlements are reported each year by the National Practitioner Data Bank. Hence there are big bucks to be made and these account for only 33.3 percent of all medical malpractice lawsuits that are litigated. Therefore, there are 40,000 medical malpractice lawsuits, which are litigated. Of these, 27,000 have no awards because they end favorable for the defendant. As many as 85,000 medical malpractice lawsuits are filed by plaintiff attorneys per year, meaning that, if 40,000 are litigated, 45,000 are not and are dismissed. In addition, the raw number reviewed by plaintiff attorneys is even greater than 85,000.
Since plaintiff attorneys represent cases on contingency, they only make money when a case prevails. A claim will prevail when it has merit. Merit is the reliability of data and material facts in the actual act of negligence, itself. Merit is reason to represent a claim. However, since only 13,000 out of 85,000 claims have awards, either plaintiff attorneys cannot manage merit or they wouldn’t know merit if it bites them. Also, since many awards are in the millions of dollars, even if one out of 6.5 claims they represent pays out, plaintiff attorneys still make between 30-40 percent per award; therefore, it is in their financial interest to represent a claim as long as it satisfies a certain threshold value.
Artificial intelligence determines the threshold value. First, claims are vetted by an artificial intelligence program, such as Anytime AI. The threshold value is the same whether the complication is a medical error or an error-of-nature.
Next, those claims that satisfy the threshold are examined by medical experts. Medical experts are required to use preponderance of evidence as the determinant. Because physicians characteristically use “95 percent probability” in clinical thinking, preponderance of evidence is arbitrary. When medical experts use preponderance of evidence, they cannot be expected to distinguish a medical error from an error-of-nature with more confidence than 50 percent probability plus a scintilla. Nevertheless, vetting by a medical expert gives a claim of negligence the “illusion of merit.”
The ultimate decision for representation is the plaintiff attorney’s. According to plaintiff attorneys, all claims they represent are “legitimate” because they are vetted by medical experts. This is ridiculous. Representation is less about the reliability of data and material facts in the actual act of negligence than it is about the value an opinion of negligence has for a plaintiff attorney. This is how a plaintiff attorney represents a claim. Note the commercial by a prestigious plaintiff attorney seeking medical malpractice clients: “If we don’t win, you don’t pay.”
Then there are defense attorneys. All cases represented by plaintiff attorneys are defended. However, you never see commercials for them, nor do they need AI. A claim is handed to them on “a silver platter” by the defendant’s medical malpractice insurance carrier. Regardless of merit and the outcome, defense costs range between $30,000 to over $100,000 per lawsuit, and there are 85,000 lawsuits filed per year. All any defense attorney needs to do is to cast reasonable doubt using the same preponderance of evidence and a medical expert as do plaintiff attorneys. Hence the outcome of any claim is a coin toss.
At trial, merit is not managed either. “Permissible inferences” and judicial rulings are used all the time by lawyers on both sides as procedural hurdles in the name of “zealous advocacy.” Hence, a non-meritorious claim can prevail at trial, and the longer it takes, the better.
Consequently, a system of medical malpractice litigation develops in which abductive/inductive reasoning is the benchmark of legal thinking and the merit in an opinion of negligence is the driver of all avoidable costs. Some verdicts are unwarranted. Some frivolous claims are represented by plaintiff attorneys. Some meritorious claims are never represented at all. Some claims, which are represented by defense attorneys, should be settled and others should never settle. As litigation procedures proceed, malpractice insurance carriers earn interest on reserves. This marketplace is worth between $56 billion to over $100 billion per year, and all those who use the health care system, whether doctors or patients, ultimately pay as avoidable costs through defensive medicine, co-payments, health insurance premiums, and malpractice insurance premiums. This is “big business” by any standard.
These problems are acknowledged by society. Tort reforms are passed and best practices are developed as solutions, but even these rely on abductive/inductive reasoning.
The solution is deductive reasoning. Deductive reasoning is critical thinking, but it makes this distinction between a medical error (a meritorious claim) and an error-of-nature (a frivolous claim) with 95 percent confidence. It is next to impossible to impeach deductive reasoning using abductive/inductive reasoning because deductive reasoning focuses on standards of care while abductive/inductive reasoning focuses on medical interventions and negligence. Once deductive reasoning becomes traditional in medical malpractice, these legal strategies backfire and there are fewer avoidable costs for users of the health care system to pay. This is how the health care marketplace works. This is also how measuring merit manages avoidable costs.
Howard Smith is an obstetrics-gynecology physician.
