Before COVID-19, the health care system was plagued by another epidemic: malpractice lawsuits. Much is expected of doctors, and disappointments have consequences. Lawsuits are too often a consequence. Under normal conditions, there are 46,000 malpractice claims per year. One-hundred percent begin with the allegation of medical negligence. Seventy-three percent end deciding there is none. In these 33,800 cases are no indemnity payments, but there are $767 million in defense costs.
Now comes COVID-19. Tons of disappointed patients can claim unfortunate experiences with the medical profession that range from social distancing in waiting rooms to deaths in nursing homes. Some will find their way to an attorney. Then the feeding frenzy starts.
Whatever the consequence of COVID-19, doctors possess two powerful weapons of malpractice defense that were never used before.
One such weapon is the scientific method. It can be adapted as a malpractice defense. The variables in the treatment in question to be analyzed may or may not be the proximate cause of an unfortunate outcome. Even standards of care have background risks of this same thing happening by chance. To distinguish between random chance and proximate cause, a statistical test is done using a level of significance, or alpha, of 0.05, which is the statistical counterpart to 95% confidence. The result is the p-value. When alpha is equal to or greater than the p-value, there is 95% confidence that the unfortunate result of treatment is not significantly different from the background risk of the standard of care. Expert witnesses are capable of using the scientific method.
Lawyers will object because proving a case with 50.01% probability is all the law requires. The preponderance of evidence means “more likely than not.” Plaintiffs are free to, also, use the scientific method, but, rather than an alpha of 0.05, they use 0.5, the statistical counterpart to preponderance of evidence. Under these circumstances, plaintiffs will prove their cases with 50.01% probability, but doing so, also, has a 49.99% error. The 95% confidence and 5% error in the defendant’s case casts doubt on the plaintiff’s case. Casting doubt on proof is all the law requires.
The other weapon is a contract. The $767 million of defense costs include 31,000 dismissed claims, $17,000 each, and 2,800 defense verdicts, $86,000 each. A contract, which holds plaintiffs accountable for these defense costs, discourages meritless allegations. Doctors possess this weapon, too.
Lawyers will object because this is contrary to the “American rule.” If so, so is the contingency fee. Still, others argue this violates state law. However, it infringes on no right, least of all, the right to sue. Lastly, if such a contract remains objectionable, plaintiffs can always purchase contract litigation insurance to cover their costs.
In the aftermath of COVID-19, plaintiff attorneys will have a field day. The AMA predicts this and calls for liability protection. In any event, from this time forward, let it be known that, when any attorney goes into court, if their case is without merit, it will be exposed with 95% confidence. Let it also be known that, under these circumstances, the plaintiff will pay defense cost should the doctor prevail. The scientific method combined with this contract changes the game. Doctors possess the weapons of malpractice defense, the WMDs, for which there are no effective countermeasures.
Howard Smith is an obstetrics-gynecology physician.
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