There is a serious flaw in medical malpractice litigation, and it is not what you may think. My post about a hypothetical medical malpractice case is not hypothetical but emblematic of the flaw. Medical staff at a major hospital in Washington, DC, did depart from applicable standards of care regarding limb salvage. The patient is actually a 78-year-old family member who suffers septic shock and a left above-the-knee amputation. There are no fewer than ten plaintiff malpractice attorneys in the area who are contacted. None agree to represent this case.

There are 85,000 medical malpractice lawsuits filed every year. According to one plaintiff attorney, 1 of every 37.5 cases reviewed is represented. Therefore, roughly 3 million cases are rejected. Undoubtedly, some of them have merit, but there is no justice for these victims of negligence as well. I see this as the flaw.

In 3 million cases rejected, the number having merit is unknown. What is known is that of the 85,000 lawsuits, 52,190, or 61.4%, are dropped; 26,860, or 31.59%, are settled before a verdict; 4,760, or 5.6%, are defense verdicts; and 1,190, or 1.4%, are plaintiff verdicts. If, for the sake of argument, one assumes that all cases that are settled or prevail have merit, 28,050, or 33.3%, have merit, but 56,950, or 66.6%, do not. If this is representative, the same is true in all samples above, including the cases rejected.

Case selection occurs following a preliminary investigation, usually performed by a “subject matter expert,” who is an agent or an employee of a law firm. Subject matter experts have five criteria for accepting or rejecting a case: (1) departures from standards of care, (2) the age of the claimant, (3) the likelihood of finding a qualified expert witness, (4) the cost/benefit analysis, and (5) meeting the burden of proof.

However, merit matters. Merit is best determined by medical experts, not attorneys or subject matter experts. The claimant’s age and the cost/benefit analysis have nothing to do with merit. Undoubtedly, some of these rejected cases have merit, yet they are rejected for those very reasons.

Merit is a composite of (1) departures from the standard of care, (2) harm, (3) causation, and (4) burden of proof, i.e., “preponderance of evidence.” If there is a 50% probability plus a scintilla more evidence that a departure from the standard of care is the proximate cause of harm, a case has merit.

“Fifty percent probability plus a scintilla” is qualitative, subjective, and arbitrary. Therefore, it is a low bar. Yet, this is sufficient for plaintiff attorneys.

According to attorneys, the qualified experts they hire are the smartest people in the room. However, they must be “coachable.” An expert is a doctor, not an attorney’s “clapping seal.” Medical experts have a duty to be “nonpartisan.”

If “scintilla” in the legal benchmark is arbitrary, it could have any value. It could be 45%; 50% + 45% = 95% probability. This is the scientific benchmark. It is quantitative, objective, and reliable. A scintilla of 45% is in keeping with the duty of nonpartisanship. Now, the legal benchmark, the scientific benchmark, and duty are all aligned. Because expert witnesses, who are “hired guns,” can ignore this characteristic of scintilla to remain coachable just to be hired, plaintiff attorneys would not know merit if it bit them, and 1 million potentially meritorious cases are rejected.

Claims are represented on contingency. Supposedly, this is for the “greater good” so that victims of medical negligence, who may not be able to afford representation, can access an attorney. What results is the opposite?

Of the 26,860 cases settled before a verdict, two-thirds are frivolous. Yet, they have an average settlement value of $250,000. For every case that settles, the contingency fee is 40%. Of 1,190 plaintiff verdicts, two-thirds are also frivolous. The average judgment is $1 million, and the contingency fee is 33%. Because the total contingency fees from frivolous lawsuits alone are approximately $3.4 billion per year, plaintiff attorneys would not know the “greater good” if it bit them, and 1 million potentially meritorious cases are rejected.

There are approximately 60,000 personal injury law firms in the United States. They represent all 56,950 frivolous claims. There are also attorneys who defend them. In addition, medical experts are retained by the attorneys on both sides. Medical liability insurance pays all costs arising from these 56,950 claims. Doctors pay $12 billion per year in premiums. What emerges is a medical liability litigation industry composed of plaintiff attorneys, defense attorneys, expert witnesses, and malpractice carriers. They make the rules, and this speaks poorly for the medical liability litigation industry.

“Risk Management: Gaining Control of Medical Malpractice Litigation” discusses a rule based on the scientific method. It proves and discourages merit with 95% confidence.

Proving or discouraging merit is not difficult when using this rule. It does not matter what attorneys expect. Experts know how because they are experts, not clapping seals, and are familiar with the scientific method. When a frivolous claim is distinguished from a meritorious one with 95% confidence, instead of 85,000 malpractice suits, there are as many as 1 million. However, all are meritorious, and there is no futile litigation. Many are expedient settlements or dismissals with prejudice. None are overzealous jury verdicts. There are no appeals. Total costs of claims are reduced for malpractice carriers, and so too are malpractice premiums. Everyone, like my family members, is represented. I see this as the solution.

Howard Smith is an obstetrics-gynecology physician.