Howard Smith, MD

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, …

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The story of medical malpractice litigation in the United States is like the famous passage in Macbeth. “It is a tale told by an idiot, full of sound and fury, signifying nothing.”

Medical malpractice lawsuits are nothing new. They have been filed and tried in America’s courts since 1784. Between 1835 and 1865, there was a rash of them. One might even call it a crisis.

Medical liability insurance is, also, …

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The famous passage in Macbeth, “a tale told by an idiot, full of sound and fury, signifying nothing,” refers to the futility of life. Or does it refer to a medical malpractice lawsuit?

There are 175 lawyers in Congress; 1 out of every 3 members is a lawyer. There are, also, 20 doctors; 1 out of every 27 members is a doctor.

Of the 175 lawyers, those who were formerly malpractice attorneys …

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Step 1: Collate. Organize the standard of care and the medical intervention into 10 corresponding phases with a respective duty.

Step 2: Compare. Compare corresponding phases using three measures:

• Background risk: Each phase in the standard of care. It is the probability that the complication is a random error-of-nature.
• Relative risk: Risk of harm for each phase in the medical intervention. If there is no difference between a phase in standard

…

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One medical expert for the plaintiff attorney is most credited for the outcome in a widely publicized obstetric malpractice case against an academic medical center. That outcome is, at most, dubious, and that medical expert is, at most, highly credentialed, holding a medical degree along with several additional advanced degrees and training as an obstetrician and as a perinatologist.

It is his opinion that the baby suffered brain damage largely because …

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It’s time to call out medical malpractice for what it really is. Dick Durbin’s own words define what is behind medical malpractice. “Before I was elected to Congress, I worked in a courtroom. For years, I defended doctors and hospitals, and for years, I sued them on behalf of people, who were victims of medical malpractice.”

Dick Durbin became a lawyer in 1969. He was first elected to Congress in 1982. …

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The 1690s were turbulent times in Salem, Massachusetts. It started as a grudge between Puritans and Anglicans in Salem Village. Most farmers were Puritans, and most business owners and merchants were Anglicans. Central to that grudge was the Reverend Samuel Parris, a strict Puritan. His sermons denounced the affluence and worldliness of those in Salem Village as the reward for being in league with the Devil.

Then in February 1692, a …

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There are commercials on TV by prominent plaintiff personal injury law firms advertising for clients. One promotes “If we don’t win, you don’t pay.” Another promotes the notion that anyone who owns a phone already has a lawyer. Still others promote the types of injuries that can be monetized, but never mention medical malpractice.

All imply that a contingency fee totally forgives clients of all legal transaction costs. All imply a …

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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 …

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Senator Dick Durbin describes his career this way: “Before I was elected to Congress, I worked in a courtroom. For years, I defended doctors and hospitals, and for years, I sued them on behalf of people who were victims of medical malpractice.”

Dick Durbin’s own words betray that, first, he was defense counsel, earning a living being retained by malpractice insurance companies. Second, he was plaintiff counsel, earning a living by …

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Medical malpractice litigation in the United States is the endless struggle to find meaning.

Lawyers, plaintiff and defense attorneys alike, reject the notion that they are involved in a frivolous medical malpractice lawsuit. To protect themselves from this notion, they use semantics. There are four words: legitimate, meritorious, frivolous, and malicious.

Legitimate is whimsical. It is in the eyes of the beholder. According to lawyers, all claims are legitimate.

Legitimate is conflated with …

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The story of medical malpractice litigation in the United States is the endless struggle to find meaning.

The United States is a litigious society. One out of every 230 Americans is a lawyer, and one out of every eight Americans will be involved in litigation in one way or another and will need a lawyer. There are 40 million lawsuits per year. Between 20,000 and 85,000 are medical malpractice claims. …

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A miscreant is simply a troublemaker. When it comes to a medical malpractice lawsuit, the biggest miscreant is the defense attorney followed closely by the medical malpractice insurance company.

For a doctor, medical malpractice insurance coverage is the difference between financial security and ruin. I practice in the state of Maryland. Maryland law does not force physicians to buy medical malpractice insurance. Nevertheless, doctors must carry a policy, which has a …

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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 …

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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 …

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Medical malpractice is big business in the United States. The only database monitoring medical malpractice is the National Practitioner Data Bank (NPDB). The NPDB’s annual report claims only 13,000 medical malpractice lawsuits. The NPDB was first established by the Health Care Quality Improvement Act in 1986. It was created by politicians (attorneys) for the express purpose of tracking specific adverse actions against health care practitioners.

Only 13,000 lawsuits are hardly “big …

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A set of medical malpractice cases can be presented as examples of a legal strategy that may undermine a fair trial. In Case A v. Medical Center A, a 16-year-old girl conceives in and lives in a developing country until 17 weeks of gestation and receives no prenatal care until 20 weeks of gestation, when she arrives in the United States. At that time, she is found to have chlamydia.

Other …

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Again, I must discuss two cases of medical malpractice which I feel best demonstrate the quagmire our health care system finds itself in. One is a medical malpractice case against a hospital. It follows that this case also has a merit of only 33.48 percent. Nevertheless, there is a legal strategy that tips the scale by not permitting testimony discussing conditions occurring in another country, where the first 17 …

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