If you are sued and satisfied with your defense, read no further. If not, you may find this article helpful.
Merit is inconclusive in every medical malpractice lawsuit ever filed, and it starts with the certificate of merit. To be clear, a certificate of merit is not proof of negligence. Proof is determined at trial. Merit is a measure for the reliability of evidence used in the proof of negligence, and a certificate of merit is necessary to determine if a trial is necessary. A certificate of merit is a gatekeeper. If there is merit, there is reason for a trial. If not, the lawsuit is frivolous. If a lawsuit is frivolous, there are and should be consequences.
On January 22, 2026, the Supreme Court of the United States issued a landmark decision upholding Rule 8 of the Federal Rules of Civil Procedure, in which a certificate of merit is a “short and plain statement” that establishes reasonable grounds for a trial. A certificate of merit merely clarifies enough solid facts to show that the claim is plausible on its face.
Anyone following my posts understands that I advocate a decision-making strategy in medical malpractice, which I call CCC+C. Not to belabor the point, the final step in the strategy is a preparation of a notarized report which summarizes that the case has merit because the null hypothesis, which is tested, is rejected; the injury is the background risk; the duties are included in 10 phases of the standard of care; breaches of duty are justified by incident risks in the test sample; proximate cause is the p-value; and merit equals 100 percent minus the average of biases, which is “X” percent.
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The report in CCC+C is completely consistent with this “short and plain statement.” If CCC+C is used in medical malpractice, whatever is measured is managed. When merit is measured, any other legal strategy is exposed. Once exposed as frivolous, malicious prosecution has consequences.
Allow me to demonstrate how a recent case illustrates this.
To make a long story short, a 16-year-old female conceives in and resides in a West African country and has no prenatal care until 20 weeks of gestation after arriving in the United States. At 25 weeks, she develops toxemia and a sonogram is consistent with adverse fetal development. Labor is induced. The induction proceeds to a vaginal delivery. The low-birthweight preterm newborn is later diagnosed with microcephaly and cerebral palsy. A lawsuit is filed alleging that the medical intervention, which is the failure to perform a Cesarean section, caused the cerebral palsy. In a pretrial proceeding, plaintiff attorneys initiate a legal strategy. They motion that, because the history about the mother’s country of origin is prejudicial, according to rules of evidence, it should be excluded. The motion is sustained. Consequently, conditions in that country escape the attention of jurors, and one of the largest plaintiff verdicts for a medical malpractice lawsuit in U.S. history is returned.
Defense attorneys file an appeal. Two years later, the appellate court rules that plaintiff attorneys fail to prove negligence and the presiding judge makes judicial errors.
If CCC+C was used by the defense early on, the null hypothesis is retained and there is no medical malpractice. In fact, merit is 96.75 percent. Once this is known, a countersuit for malicious prosecution is a viable strategy.
Adapting the argument of plaintiff attorneys to CCC+C shows how influential their strategy to exclude the mother’s circumstances from the jury is to the verdict.
The null hypothesis is rejected and there is medical malpractice. Breaches of duty are expressed by incident risks in the test sample. The diagnostic phase, the deliberation phase, the informed consent phase, the selection phase, and the technical phase have incident risks of 100 percent, meaning that a breach of duty is a very close call. Because the determinant for the plaintiff is preponderance of evidence, alpha is 0.5. The p-value is 0.007478. Proximate cause is 0.75 percent. However, merit is 25.34 percent.
Now, any finder of facts would know that merit for the defense is 96.75 percent and that merit for the plaintiff is 25.34 percent. Realizing this and a potential for a countersuit, very likely the plaintiff attorney would dismiss the lawsuit with prejudice rather than risking a defense verdict and other consequences.
Because CCC+C is never used, how jurors decide remains to be seen. Nevertheless, we know what actually happens. The ultimate losers are everyone who pays avoidable costs in the health care system, which include years of billable hours to defense attorneys. The health care marketplace works by passing on these costs to users and consumers.
Although this case has nothing to do with a certificate of merit, it has everything to do with merit. A strategy unfolds that undermines the purpose of a certificate of merit, which is a fair trial. In this case, there is a trial, but the jury never hears all the evidence.
All decision-making methods have threats to validity. A threat to validity is a doubt introduced by an examiner, in this case the plaintiff attorney, that either causes an incorrect conclusion by finders of fact, which is an external threat to validity, or undermines their confidence in the variables being studied, which is an internal threat to validity, or both. Nevertheless, ultimately the defense prevails. Why the defense did not initiate a counterclaim for malicious prosecution is anyone’s guess. If I were the defense, I would have.
Howard Smith is an obstetrics-gynecology physician.
