Many books describe medical malpractice. Among them are Medical Malpractice; Medical Malpractice: A Physician’s Sourcebook; The Malpractice Myth; A Measure of Malpractice: Medical Injury, Malpractice Litigation, and Patient Compensation; Medical Malpractice: Theory, Evidence, and Public Policy; To Err Is Human; Medical Law and Ethics; and Medical Liability and Treatment Relationships: A Physician’s Insight Into Medical Negligence. These are all described as “groundbreaking.”
I developed a decision-making method that I call Collate, Compare, Calculate, and Certify (CCC+C). Whether it is groundbreaking remains to be seen, but for them, “groundbreaking” is 14,000 litigated malpractice cases per year, of which 50 percent are, likely, frivolous. To prove CCC+C’s worth, I submit it to a strengths, weaknesses, opportunities, and threats (SWOT) analysis.
Strengths: Rather than portraying a medical intervention as a vague concept, CCC+C portrays it as a formula to evaluate a physician’s performance against predictable medical baselines or standards of care. Consequently, CCC+C has seven strengths:
- Mathematical objectivity: Unlike traditional abductive/inductive reasoning, which is qualitative, CCC+C is quantitative. There is clear mathematical separation between the standard of care, represented as the background risk for an error of nature, and the medical intervention in question, which involves risks. I called the difference of risk between a given phase of the standard of care and its counterpart in the medical intervention “a relative risk.” Relative risk is fundamental to the mathematical objectivity.
- Standardization of care: CCC+C establishes 10 standard duties (phases) that are included in any medical intervention and in the standard of care. This ensures that a physician evaluates every phase of care consistently, from a patient’s first physician encounter to the last. Each phase in the standard of care is a baseline constant equal to the background risk. If there is no difference between corresponding phases, the relative risk is 1.0; if there is a difference, the relative risk is greater than 1.0, consistent with the degree of risk. This prevents subjective judgments in a legal setting.
- Clear risk demarcation: By determining explicit relative risks in each phase of the medical intervention in question, risk managers and providers can pinpoint where true liability lies. CCC+C then calculates the incident risk for any phase of the medical intervention as relative risk x background risk. The result is a sample of 10 incident risks for each respective duty (phase) in the medical intervention in question. Some are equal to the background risk, and some are greater than the background risk; collectively, this sample represents the medical intervention.
- The quantitative measure of medical malpractice: Next, the single-sample t-test determines if the differences in the sample are statistically significant. If they are, there is a departure from the standard of care; otherwise, there is no departure. Plug the sample into its data field and the background risk into its field, select alpha (0.05), and click result (p value). If the p value > alpha, there is no departure from the standard of care. If the p value < alpha, there is.
- Daubert decision integrity: The underlying heuristic is scientifically valid; it has been or can be tested; it is consistent with peer review and accepted science; and it has a quantifiable error rate. There is always type 1 error (alpha) and type 2 error (beta). If alpha is 0.05, beta is 0.2. If alpha is 0.5, beta is 0.0065.
- Merit: CCC+C determines quantified values for merit and bias.
- Transparency: Any attempt by any party to interfere with the heuristic in CCC+C is exposed.
Weaknesses: CCC+C has four notable weaknesses:
- Risk of expert manipulation: An expert witness can manipulate inputs to skew the final result because of bias.
- Complexity: Separating the standard of care and the medical interventions into 10 distinct phases is a learning curve. Traditional abductive/inductive reasoning is easier.
- Confounding variables: Determining relative risk can be influenced by bias.
- Systemic vs. individual error: The focus on duties underestimates mistakes caused by faulty software, understaffing, or poor institutional communication.
Opportunities: The major opportunity for CCC+C is its potential to revolutionize medical risk management by standardizing how health care systems predict, defend, and learn from clinical errors. It does so in four ways:
- Quality improvement: Health care systems can use the tool prospectively to audit high-risk surgical procedures or clinical pathways, identifying which of the 10 standard duties are most vulnerable to failure before an adverse event occurs. Also, by generating clear metrics on where care delivery falls short, hospitals can design precise, data-driven continuing medical education (CME) and simulation training rather than relying on generic safety lectures.
- Standardizing malpractice defense and insurance: Defense attorneys and expert witnesses can leverage the tool to provide courtrooms with a clear, mathematical separation between an unpreventable “biologic fluke” (background risk) and actual negligence, reducing reliance on emotional jury arguments.
- Organizational growth: CCC+C provides a ready-made, interactive framework for peer review and internal safety committees. Rather than finger-pointing, the focus is on objective observations. Also, the precise calculation of incident risk could be used to generate highly accurate risk data and better databases.
- Universal health care: As the risk of frivolous lawsuits decreases, so do avoidable and unavoidable costs, and, in turn, the costs in the entire health care system are reduced, making universal health care possible.
Threats: Each of the above authors offers solutions that compete with CCC+C, and these books are successful in their own right. All, however, are based on traditional abductive/inductive reasoning, and none of the above books shows a single strength nor a single opportunity because they are conventional and are the cause of the weaknesses we see in medical malpractice litigation. We are plagued with frivolous lawsuits costing billions of dollars in avoidable and unavoidable costs. They are the threats.
Howard Smith is an obstetrics-gynecology physician.
