I outline a frivolous medical malpractice lawsuit as being brought on by a random error of nature.
Plaintiffs are entitled to really feel aggrieved and to hunt authorized counsel. Some, nonetheless, have ulterior motives.
Plaintiff attorneys are “good Samaritans.” They work for a contingency charge. This invitations ulterior motives; nonetheless, as a result of these attorneys bear the associated fee, motives don’t matter. Solely the worth of a case issues and there’s synthetic intelligence to weed out essentially the most remunerative. Claims that fulfill this criterion are then reviewed by medical consultants, who’re simply “employed weapons.” Solely then is a declare represented as a malpractice lawsuit; the remainder are declined. Within the meantime, plaintiff attorneys assert to by no means signify a frivolous lawsuit. Doubtless, some are frivolous as a result of 55,000 are dropped as soon as filed and there are disclaimers within the contingency charge contract. Contingency charges pay $2.5 billion. The one factor plaintiff attorneys aren’t is an effective Samaritan.
Protection attorneys have a distinct technique. Figuring out that 85,000 medical malpractice lawsuits should be defended, they contract with medical malpractice insurance coverage corporations. They’re “zealous advocates.” As a result of zealous advocates ought to acknowledge frivolous lawsuits after they see them, they need to advise their assigned consumer of a possible authorized technique to countersue for malicious prosecution. Nonetheless, countersuits aren’t a part of the contract and $1.1 billion per 12 months is extra necessary. The one factor protection attorneys aren’t is a zealous advocate.
Subsequent are medical consultants. 85,000 work for plaintiff attorneys. An equal quantity work for protection attorneys. That is “self-regulation” within the medical career. Many spend as a lot as 25 % of their skilled time on self-regulation. The medical career could also be self-regulating; nonetheless, they’re employed weapons.
Malpractice insurance coverage corporations declare victimhood because the “money cow.” They’ve contracts with protection attorneys, who put together the technique for a protection, and each coverage has a clause requiring the insured doctor to cooperate with the technique. Malpractice carriers would reasonably settle a totally defensible declare than danger a plaintiff verdict. Noteworthy are 27,000 settlements. Protection attorneys agree or danger shedding contracts. Docs comply or danger shedding insurance coverage protection. Regarding premiums versus losses, income are $25 billion per 12 months, most of which is utilized to reserves and is exempt from revenue taxes. Malpractice carriers aren’t victims.
The well being care system is one thing else. Previously, it was personal hospitals and personal practices self-regulated by free-market forces. In the present day, it’s networks of hospitals, third-party payors, and doctor teams dysregulated by the Reasonably priced Care Act. Docs be part of networks primarily for malpractice protection. Most networks are self-insured for medical malpractice. Networks are paid by well being insurances in accordance with capitation, the variety of insured lives they enroll. When docs be part of, so do unwitting sufferers. This will increase enrollment. Docs are paid in accordance with outcomes. Outcomes consequence from resource-based follow guideline, aka, finest practices. Generally finest practices depart from requirements of care. The price of well being care is $4.9 trillion per 12 months. Revenue for networks is $600 billion. There are 85,000 medical malpractice lawsuits. That is how dots join.
Why dots join is a distinct matter. Many politicians are attorneys; consequently, no lawsuit is frivolous. Some, like Dick Durbin, start their careers litigating medical malpractice.
Complete revenues for the AMA exceed half-a-billion {dollars} per 12 months. Politicians regard the AMA because the voice of the medical career. As its voice, the AMA is OK with finest practices. Its 2024 annual report, entitled “Why We Combat,” makes clear that frivolous lawsuits aren’t value combating over. Within the report, the phrases, “frivolous lawsuit,” are nowhere to be discovered. Though there was a malpractice disaster because the Nineteen Seventies, it was not till 2003 and once more in 2023 that the AMA acknowledged a medical malpractice disaster. In 1995, the AMA established the Litigation Middle. Nonetheless, between then and 2021, it’s concerned in 322 medical malpractice instances, that are solely twelve per 12 months. On the AMA’s board of trustees are docs, who’re executives of networks, consultants for malpractice and medical insurance corporations, medical consultants, and attorneys. If frivolous lawsuits aren’t a giant deal for the AMA, they’re likewise for politicians. Nonetheless, 75 % of physicians don’t belong to the AMA, which underscores that its affect on politicians is unwarranted.
There’s additionally the tort system. Essentially the most infamous medical malpractice verdict in historical past is for $229.6 million. Due to the tort system, the jury by no means learns that the alleged harm is an error of nature. It takes three years to litigate and one other two years for an enchantment.
Final, however not least, are docs. As a result of medical malpractice insurance coverage can price greater than $100,000 per 12 months, we can’t be faulted for becoming a member of networks. Nonetheless, there are alternate options. One is a “prevailing get together settlement,” which ought to be a situation of each affected person/physician relationship. It holds the shedding get together in a malpractice lawsuit chargeable for all of the authorized prices. Such alternate options would decrease dangers, and the necessity to be part of networks. Nonetheless, most physicians select to not rock the boat. Additionally, 170,000 of them make $17 billion per 12 months as medical consultants.
What’s simply described represents $650 billion per 12 months, which is 2.4 % of the GDP and is 11.6 occasions higher than $56 billion for medical malpractice litigation. For a lot of, $56 billion is simply the worth of doing enterprise. It’s curious that this $56 billion determine has not modified since 2010. I’m an OB/GYN. My danger publicity is 8.5 % per 12 months, which is one lawsuit each twelve years. I pay premiums for twelve years, to the tune of $1 million, to guard towards one lawsuit, which is frivolous. That is absurd. To deal with this, I developed “CCC+C,” a easy however efficient solution to distinguish between a meritorious declare and a frivolous one. Not like the well-known “4 Cs” of danger administration (compassion, communication, competence, and charting), “CCC+C” shouldn’t be about stopping lawsuits, however about evaluating them as soon as filed.
- Causation: Was the alleged hurt really brought on by doctor negligence, or was it an unavoidable error of nature?
- Contract: Does the authorized or insurance coverage settlement truly assist pursuing the declare, or is it being exploited?
- Compliance: Did the doctor comply with accepted requirements of care or established finest practices?
- + Prices: Are the damages and litigation bills proportionate, or is the case inflated past cause?
When a declare fails a number of of those assessments, it’s frivolous. When it satisfies all of them, it’s meritorious. Regardless of the complexity of malpractice litigation, this framework works in follow. It offers readability the place none exists, although no nationwide databank tracks frivolous lawsuits.
Howard Smith is an obstetrics-gynecology doctor.
