When you are sued for medical malpractice, your malpractice carrier establishes your duties to it, and your lawyer establishes your duties to him or her. Let me be clear – when you are sued for medical malpractice, you have no greater duty than to yourself. A duty is a commitment or an expectation on you to perform properly in accordance with certain circumstances. A duty may arise from a system of ethics, especially in an honor culture, like the medical profession. There are duties that arise when we seek legal advice, as when your lawyer tells you not to talk to anyone about a lawsuit against you. Other duties are created by contract, sometimes including a codified punishment for non-performance, such as the cooperation clause, to which your malpractice carrier obligates you.
However, there is also the moral duty of due diligence. It is the right to mitigate risks and to contribute to effective decision-making by providing a detailed understanding of the matter at hand. The duty to protect yourself is an inherent human right. No lawyer and no malpractice carrier can take that away from you; yet, this is the very first thing they expect you to voluntarily relinquish.
Unbeknownst to you, there are conflicts of interest. Even before you are served, you are already in the middle of a conflict of interest between the plaintiff, the plaintiff’s attorney, and their medical expert. The plaintiff’s attorney takes the most risk and is the instigating party in this conflict.
Once you report this lawsuit to the malpractice carrier, you are in the middle of another conflict of interest between the carrier, your attorney, and your medical expert. The malpractice carrier takes the most risk and is the instigating party.
In a short time, because of these conflicts of interest, this entire lawsuit takes on the characteristics of a FUBAR (fouled up beyond all recognition), and what emerges are the following three rules used both to prosecute and defend your case. You are outside of the loop.
1. Opinions are formed by inductive reasoning. Inductive reasoning compares your disputed treatment to the standard of care. The disputed treatment is the observation. Any observed complication must be a medical error. The standard of care is the premise. It is the treatment expected from any competent practitioner and is free of a medical error.
2. The burden of proof for this comparison is preponderance of evidence. It is 50% probability plus a scintilla. Scintilla is intuitive and can have any value. Preponderance of evidence is the standard upon which a hypothesis is decided. The hypothesis is if the disputed treatment looks like the standard of care, behaves like the standard of care, and has the same results as the standard of care, more likely than not, the disputed treatment is the standard of care. However, there is no test for this proof.
3. Finders-of-fact are the ultimate test. For them, if the scintilla is only 1%, their decision has a 51% probability of being correct and a 49% chance of being wrong. In the final analysis, this is how doctors, you included, are measured. Speculation determines if the complication is an error of nature or a medical error.
Inductive reasoning has as much a chance to work in your favor during discovery or at trial as it has to work against you. These rules arise from consensus between parties in a conflict of interest. There is heavy reliance on intuition. Both consensus and intuition are the absence of science. Inductive reasoning is easy to impeach once you know how.
I know how. I adapt the scientific method to a lawsuit; The scientific method has greater credence than the conventional rules that result from consensus between all those involved in conflicts of interest.
1. Opinions are formed by the scientific method. In the scientific method, deductive reasoning compares the standard of care to the disputed treatment. The premise and the observation are the same with one exception. The comparison is not of generalities but focuses on ten specific duties in each. Any difference between satisfying a duty in the standard of care and satisfying the corresponding duty in the disputed treatment represents a measurable risk of harm for a medical error; otherwise, a complication is an error of nature. The null hypothesis states that, if all duties are satisfied, the standard of care and the disputed treatment are virtually the same. Once all ten specific duties are examined, the null hypothesis is vigorously tested.
2. The burden of proof for the test is preponderance of evidence. However, scintilla is 45%, which gives the burden of proof 95% confidence – a scientific standard.
3. Finders of facts are the ultimate decision-makers. However, they know the hypothesis has already been tested. When 95% confidence has a 5% chance of being wrong, this method stands in stark contrast to inductive reasoning. The scientific method is difficult to impeach, and any attempt to do so by the other side only emphasizes deficiencies in inductive reasoning.
This is what I mean by due diligence. There is no better reason for due diligence than this impending FUBAR. Your due diligence reminds your attorney that he or she is your advocate. It reminds the malpractice carrier that you are the insured. The scientific method reminds both experts that they are scientists. It reminds the plaintiff and plaintiff’s attorney that lawsuits must have merit. What results remain to be seen; however, it works for me.
Howard Smith is an obstetrics-gynecology physician.