As a doctor, I rely on legislators to safeguard my professional interests, most of which concern medical malpractice litigation. However, because they fail in this mission, I do not trust them, so I become proactive.
I know that medical malpractice insurance carriers face operational challenges, to which I am completely sympathetic. The most important challenge is whether to settle a defensible case, which involves a severe complication but no negligence, or to face an emotional jury trial and a potential plaintiff verdict. Case in point is Byrom v. Johns Hopkins Bayview Medical Center, which resulted in the largest medical malpractice verdict in U.S. history, $229.6 million. Although it was later reduced to $205 million because of a cap on non-economic damages in the state of Maryland, and it was even overturned on appeal, it took two years and generated millions of dollars more in legal transaction costs. Undoubtedly, any doctor practicing in Maryland had their malpractice premiums increased because of this, and every patient in Maryland paid the price, either in health insurance premiums or in doctor fees, because these costs are passed on to them.
I developed CCC+C (Collate, Compare, Calculate, and Certify) not for them but for me. CCC+C is a quantitative decision-making heuristic that distinguishes a preventable medical error from an unavoidable, random error-of-nature with 95 percent confidence. In practice, it reduces indemnity payouts and the allocated loss adjustment expenses (ALAE) for insurance carriers.
Also, plaintiff attorneys are only paid if they win a case. For them, this malpractice analysis discourages frivolous lawsuits and compels early dismissals before incurring heavy expenses.
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While claims departments rely heavily on subjective peer reviews and abductive/inductive reasoning by medical experts on both sides of a medical malpractice case, the lack of an alternative to this forestalls early dismissals, thereby inflating the ALAE and indemnity payouts for insurance carriers, as well as the legal transaction costs for both plaintiff and defense attorneys. I figured this out years ago when I developed CCC+C. The methodology operates through a structured four-step algorithm:
- Collate: CCC+C organizes the standard of care and the actual medical intervention into ten corresponding clinical phases.
- Compare: CCC+C then compares the corresponding phases, statistically weighing the background risk of the complication to the relative risk introduced by the medical intervention, resulting in an incident risk for each stage of the medical intervention.
- Calculate: CCC+C applies a single-sample t-test to determine a definitive p-value against a preset alpha level chosen by an investigator, which is either the legal standard of “preponderance of evidence” or 95 percent confidence.
- Certify: CCC+C prepares a standardized report establishing quantitative values for type I error, type II error, selection bias, avoidance bias, confirmation bias, heuristic bias, and merit. I can unequivocally state that nothing, even certificates of merit, does likewise.
When a complication is statistically proven in this manner to be an error-of-nature, the insurance carrier and the defense counsel retained by it enjoy an immediate empirical advantage over the plaintiff attorney, especially if a trial proceeds. In practice, when plaintiff attorneys encounter this advantage, they know that they cannot meet the same statistical threshold to prove a departure from the standard of care and that CCC+C is decisive. If they could, they would already have done so.
This works for me each time I use it, and it will work for any doctor.
Howard Smith is an obstetrics-gynecology physician.
