There are one million physicians practicing medicine in the United States. No medical intervention they recommend is immune from a complication. The exact number of complications is unknown. Some are medical errors inherent to the intervention, while others are random errors of nature caused by external factors.
When you add to this the fact that there are more lawyers in the United States today than ever before, something has to give. There are approximately 64,000 personal injury law firms. Of the unknown number of complications, 85,000 receive their attention—whether from a medical error or an error of nature. Each firm has a financial incentive to adjudicate a complication. It follows that 85,000 practitioners and facilities are sued every year.
This trend has been progressive for 50 years, beginning in 1975. At that time, the School of Health Policy and Management at the University of California foresaw a problem: bias in the system resulting in error-prone findings. Researchers identified two sources of bias: medical experts and the judicial threshold of preponderance of the evidence. Proving or disproving a distinction between a medical error and an error of nature, therefore, becomes scientifically ineffectual.
As a management science principle states, “Whatever gets measured, gets managed.” Measuring preponderance of evidence manages evidence. This serves the financial interests of lawyers but little else. This is the problem in a nutshell.
There is always money. All potential defendants have malpractice insurance to indemnify against medical errors. There is always self-interest. For each plaintiff attorney, there is a defense attorney. Both use preponderance of evidence to validate the merit of a claim. They need to justify their existence and know no other way.
Preponderance of evidence is their legal standard. It is defined as 50 percent probability plus a scintilla. This corresponds to a level of confidence slightly better than a coin toss—50-50. These lawyers retain medical experts—physicians who fill a market need. This is how free markets work. To be hired by a lawyer, these physicians are required to use this same standard. However, this is not how professionalism works. When doctors are obliged by lawyers to betray their own professional standard in favor of a legal standard, they act unprofessionally and threaten validity.
Indeed, there is a professional standard for doctors: the scientific method. Ordinarily, this is how physicians make decisions. It determines cause and effect by measuring differences between a desired result and an undesired one with a level of confidence of 95 percent. This is what doctors do. There is no better way to distinguish a medical error from an error of nature. If the difference is measured, the difference can be managed.
The same principle applies to accountants and actuaries working for malpractice carriers. Preponderance of evidence is not an accounting standard. They use cost drivers, such as dollars per error-prone opinion. When error-prone opinions are measured, error-prone opinions are managed.
The solution is obvious: measure the right thing. Return to the scientific method. It has been around since the days of Sir Francis Bacon. Ultimately, it is the one standard that underlies professional norms for doctors, actuaries, other decision-makers, and even lawyers. I adapt the scientific method for medical malpractice by using preponderance of evidence with scintilla at 45 percent. This adaptation has been published and peer-reviewed.
Anyone claiming to be a leader in health care and organized medicine knows—or should know—how to use the scientific method. If they do not or are oblivious to it, as far as I am concerned, they are “pretenders.” They feather their own caps. This is not what leaders do. I have their number, and soon so will everyone else because they expose themselves.
They stage a coup in management science. No matter your capacity—whether as a patient, lawyer, hospital administrator, practitioner of any sort, medical expert, health care administrator, or politician—you are, have been, or will be involved in medical malpractice litigation. There is no escaping it. Indifference is no longer an excuse. Either step up or step out.
Howard Smith is an obstetrics-gynecology physician.
