Medical malpractice in the United States has evolved into a system plagued by substantial problems. Each year, the National Practitioner Data Bank (NPDB) reports statistics on an average of 13,000 medical malpractice lawsuits that are litigated. However, these are awards against practitioners, which account for one-third of all medical malpractice lawsuits that are litigated. Hence, 40,000 medical malpractice lawsuits are litigated.
Another source, Justpoint, reports that as many as 85,000 medical malpractice lawsuits are filed per year. All lawsuits that are filed are represented. For each, there is a plaintiff and a defense attorney.
When combining these sources, it follows that the 40,000 claims that are litigated have two attorneys. Only 13,000 result in awards, but 27,000 do not. It also follows that 45,000 filed claims also have two attorneys but are not litigated. Although the exact number of lawyers involved in medical malpractice litigation is unknown, it exceeds 170,000. Also unknown are the numbers of medical malpractice claims reviewed by plaintiff attorneys, meritorious claims reviewed and rejected by them, frivolous claims that are settled but deserve to be defended, and total legal costs.
In this system of medical malpractice litigation, statistics show that, at best, this is inefficiency. At worst, this is kakistocracy. In meritocracies, deductive reasoning is the benchmark of critical thinking, and it determines merit with 95 percent confidence. Decision-making processes, such as CCC+C, develop.
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I will say no more about CCC+C except to make three points.
The first point is that the fundamental principle of CCC+C is that merit can be managed. Most medical interventions produce a desired effect, but some produce an undesired effect. Undesired effects may not be caused by the medical intervention, but they raise suspicion about the medical intervention, which, in turn, causes medical malpractice lawsuits.
The second point is that CCC+C draws attention away from distractions that are unreliable and focuses attention on content that is reliable. As previously discussed, there are two noteworthy medical malpractice lawsuits, one meritorious, the other frivolous. In both, the weaker side initiates a legal strategy that distracts from the weakness of their case. If one calculates merit, as can be done when using CCC+C, in these two cases the stronger side has merit over 70 percent and the weaker side has merit under 50 percent.
The third point is that CCC+C is a short and plain statement of merit. If used in these cases, because whatever is measured is managed, when merit is measured, the legal strategy is foiled.
The initial controversy in every medical malpractice lawsuit is over merit, or at least the certificate of merit. To be clear, merit is not proof of negligence. A trial is for that. Merit is a measure of the reliability of evidence used in the proof of negligence as stated in the certificate of merit. On January 20, 2026, in a unanimous decision (Berk v. Choy), the Supreme Court of the United States determined that, according to Rule 8 of the Federal Rules of Civil Procedure, a short and plain statement of merit creates a reasonable expectation for a fair hearing.
Neither of these cases involves a certificate of merit; however, both involve a strategy that, in one way or another, is meant to undermine the purpose of the certificate of merit, which is a fair hearing.
Regardless of the side that initiates the strategy, defense attorneys profit from it. When the strategy delays a case, their billable hours are paid by the medical malpractice insurance company that hires them, and the longer it takes the better. In both these cases, the delay takes two to three years, and defense attorneys are paid probably over a million dollars for billable hours. This is how the kakistocracy works. The ultimate losers are everyone who pay avoidable costs in the health care system, which include these billable hours. This is how the health care marketplace works. I leave you with this final point to ponder.
Howard Smith is an obstetrics-gynecology physician.
