If you are embroiled in a medical malpractice lawsuit today, you are in a difficult situation.
Your lawsuit is one of 85,000 medical malpractice cases filed each year. Regardless of what your defense counsel tells you about merit, no one truly knows how many lawsuits have merit. A prominent defense attorney has gone on record declaring that there is no such thing as a frivolous lawsuit and publicly disavows any notion to the contrary.
As strange as this seems, it comes from a defense attorney. I suppose that the lawsuits he defends are all meritorious. You only need to go on YouTube to find out who this attorney is.
Plaintiff attorneys are no better. Only one out of every 37.5 claims reviewed by them is arbitrarily represented. The rest, over three million, are abandoned even though they may have merit. The claimant in your lawsuit is one of the lucky ones.
For every lawsuit arbitrarily represented by a plaintiff attorney, a malpractice carrier arbitrarily selects a defense counsel to defend it. This is how you got your attorney. Naturally, medical expert witnesses are hired by both sides, chosen for “selective advocacy,” whatever that means. Undoubtedly, this is true of experts on both sides of your lawsuit.
Once you are served, you must cooperate, and the meter starts running. Total litigation costs amount to $55.6 billion per year, with an average cost of about $654,000 per lawsuit. This includes contingency fees of plaintiff attorneys and billable hours of defense attorneys. This is true of your lawsuit. An entire medical liability litigation industry is supported by this status quo.
If nothing else, when available data is inconclusive, the majority of decisions are questionable, costs are draconian, and no one represents your interests, there is a problem.
You might not realize it until it is too late and a settlement has been negotiated.
Traditional decision-making relies on inductive reasoning. It is subjective. Its fundamental principle is the “preponderance of evidence.”
All decision-making principles have a “level of confidence,” which refers to the odds of being right. For preponderance of evidence, the level of confidence is “50% probability plus a scintilla.” Scintilla is discretionary. For either counsel, scintilla is “just enough to win.” A coin toss has a 50% probability.
All decision-making principles also have a “type-1 error,” which refers to the odds of being wrong. For preponderance of evidence, type-1 error is 50% minus a scintilla. Because scintilla is “just enough to win,” this is only slightly better than a coin toss.
This is what your lawsuit is all about, and your fate rests on a coin toss.
The solution is to change decision-making. “Hypothesis testing” is deductive reasoning. As a doctor, you are familiar with hypothesis testing. It is objective. At the very least, scintilla is given a value of 45%. Now, preponderance of evidence has a level of confidence of 95% and a type-1 error of 5%.
If a coin toss is unsatisfactory to you because you did nothing wrong, prove it. File a written report stating that, having submitted all the objective evidence documented in medical records to hypothesis testing, you certify with 95% confidence that there is no departure from the standard of care, the medical complication in question is an error of nature, not a medical error, and there is no proximate cause. Hence, under no circumstance will you ever agree to a settlement. This one document completely unravels any settlement value perceived by the plaintiff.
At first, your attorney will dissuade you and advise you to talk to no one. He has 50 years or more of experience in medical malpractice. Furthermore, his firm has a collective experience of a couple hundred years. They all know what they are doing. Yet every year, there are 85,000 lawsuits, each with a 66.6% chance of being frivolous. Total litigation costs are $55.6 billion. Most cases are either dropped or settled. The average lawsuit costs about $654,000. Need I say more? Soon after, the tone and tenor of your attorney’s communication will change, and you will be dismissed with prejudice. This has been my experience.
Howard Smith is an obstetrics-gynecology physician.
