Today, a doctor’s chance of being sued for medical malpractice is 8.5 percent per year. The chance that the lawsuit is frivolous, meaning the alleged injury is from a random error of nature and not from an accidental medical error, is 66.6 percent.
Complications are inevitable. Medical errors occur during medical interventions. So do random errors of nature. At first glance, an error of nature is a medical error until proven otherwise. Therefore, it is reasonable for an unfortunate victim to suspect that the practitioner is at fault. For the practitioner, it is also reasonable for the complication to produce a suspicion of impending litigation.
Whether from a random error of nature or a medical error, an attorney is sure to follow. As long as there is a settlement value, a plaintiff attorney could care less if a claim has merit. For them, all lawsuits are legitimate. Legitimate or not, when a disproportionate number of all lawsuits have no merit, there is a problem.
The practitioner is usually the first to know of an unfortunate result and should respond accordingly. Nevertheless, most are hapless and helpless because leadership in the medical profession regards self-advocacy as selfish. After all, practitioners have protection. They have medical malpractice insurance.
Self-advocacy, however, is not selfish. Asserting so is delusional. Malpractice insurance pays for a defense attorney; it does not protect from a malpractice lawsuit. To make certain that a practitioner complies with whatever the defense has prepared, the carrier includes a cooperation clause in the policy. The defense attorney is paid by the carrier. It matters not if the defense attorney has a conflict of interest between the defendant and the malpractice carrier. Yet, for leadership in the medical profession, as long as practitioners have malpractice insurance, they are protected.
For carriers, because premiums are always paid, practitioners are “the gift that keeps on giving.” As long as there is a steady cash flow, malpractice carriers could care less about protecting a practitioner. For carriers, the only thing that matters is the cost-to-premium ratio. As long as costs of litigation do not exceed premiums, carriers remain protected. As a doctor, are you protected by your malpractice carrier?
To afford premiums and maintain malpractice coverage, practitioners enter into all sorts of network arrangements in order to find some sanctuary. Networks often require adherence to “resource-based practice guidelines.” Practice guidelines are not standards of care. As long as there is compliance with these resource-based practice guidelines, the network could care less if a practitioner departs from a standard of care to remain in compliance with a practice guideline. The only thing that matters to the network is keeping health care “cost-effective.” As long as they do, the network is protected. For practitioners, instead of a sanctuary from malpractice, these networks make them even more vulnerable. As a doctor, are you protected by your agency in a network?
The rules for medical malpractice are recently restated in the AMA’s Journal of Ethics. The rules consider a practice guideline as the standard of care. The AMA declares that the evidence for practice guidelines, just as the standards of care, is based on competence. Cost has nothing to do with a practice guideline. Leadership in the AMA could care less about its rank-and-file membership. The only thing that matters to them is justification for their new classification of these guidelines. In truth, if practice guidelines were based on competence, this would be a step in the right direction. As a doctor, are you protected by the AMA?
The natural instinct for any practitioner under such threat should be advocacy for the standard of care. To vindicate oneself only requires evidence based on competence to prove with 95 percent confidence whether an inevitable complication is from a medical error or from a random error of nature. This is competence.
A medical error has a distinct fingerprint. Any complication following a medical intervention, on which this fingerprint is found, exemplifies a medical intervention that departs from the standard of care. However, any complication on which the fingerprint of an error of nature is found exemplifies a medical intervention that is the standard of care. This is a fundamental principle in medical malpractice. Knowing this, as a doctor, does this make a difference for you to be protected?
Nevertheless, haplessness and helplessness are the trends the medical profession takes for the sake of a “safe harbor.” Otherwise, self-advocacy asserts competence. Asserting competence points to a practice guideline that departs from a standard of care. Frankly, if any doctor knowingly complies with a practice guideline that departs from a standard of care, they are committing medical malpractice. Yet, leadership in the AMA expects the rank and file to comply, if for no better reason than to justify the AMA’s assertion that a practice guideline is the standard of care.
Under what possible circumstance would an oracle or soothsayer in ancient times advise, “A conflict is coming. Do nothing.” Yet, this is exactly what is happening today when a lawsuit will likely follow a medical intervention.
It is not that the problem in medical liability goes unrecognized. On the contrary, an entire industry of plaintiff attorneys, defense attorneys, medical experts, malpractice insurance companies, networks, risk managers, and, yes, the AMA, develops to exploit the problem.
The problem in medical malpractice today is that, in each of the 85,000 medical malpractice lawsuits filed per year, there is a distinct inability to objectively determine which mal-occurrence is a medical error and which is a random error of nature. The reason why 8.5 percent of doctors in the U.S. commit medical malpractice is because these so-called “risk managers” determine they do. The problem is their legacy. As a doctor, what are you going to do about it?
I know what I am going to do; I have already done it. Eight-point-five percent of all doctors reading these words are or will be sued for medical malpractice this year. Doing nothing makes the problem their legacy.
Howard Smith is an obstetrics-gynecology physician.