All medical malpractice claims arise from complications that occur during medical procedures, which can be classified into two categories: unpredictable natural errors and systemic medical mistakes. The former are neither predictable nor avoidable, while the latter occur when medical procedures diverge from the established standard of care. Clinically, differentiating these two types of errors proves to be difficult, complicating situations involving medical malpractice.

The medical liability litigation sector, consisting of plaintiff lawyers, defense attorneys, medical professionals, malpractice insurers, healthcare organizations, and risk managers, flourishes on the lack of distinction between these errors. Essentially, risk management should commence with the physician, who upon encountering a complication, must promptly inform the malpractice insurance provider, in accordance with the “reporting clause” outlined in insurance agreements. This clause mandates that insured doctors report any claims to their carriers, which is interpreted as notifying them upon first becoming aware of a risk, namely when a complication occurs.

In handling a complication, doctors should apply the scientific method to determine whether an error aligns with the standard of care or is a natural occurrence. This process requires hypothesis testing and achieving 95% confidence, abilities that are part of physicians’ scientific education. Following this, physicians should compile a comprehensive and notarized report on the inquiry process, which should then be dispatched to the insurance carrier via registered mail. Although this unconventional action is not explicitly forbidden, it demonstrates the physician’s commitment to due diligence.

Once this report is received, the insurance carrier is anticipated to evaluate its validity, ensuring they remain informed. Should a lawsuit arise, the complaint gets forwarded to the carrier, and physicians must then deliberate the details with the attorney designated by the carrier. The physician stresses the reliance on the scientific method and asserts that settlements merely for convenience will not be considered. The specifics of the report should be incorporated into the defense strategy, thereby raising the standard for the plaintiff’s counsel, who bears the burden of proof. Such a strategy could lead to a dismissal with prejudice or a summary judgment before the trial.

Legislators have introduced “loser pays” legislation to discourage frivolous lawsuits, although there are challenges in its approval. Alternatively, doctors and patients could establish a “prevailing party agreement” during their initial meetings, stipulating that the losing party pays the legal fees in conflicts. This new condition alters the patient-doctor dynamic, necessitating that patients select providers who do not impose such terms if they are in disagreement.

This approach empowers physicians to distinguish natural errors from medical mistakes and aims to promote justice by minimizing misrepresented claims. While striving to thwart frivolous lawsuits early, this framework also facilitates the prompt resolution of legitimate cases, potentially lowering legal and healthcare expenses. It could also hold accountable individuals who pursue baseless claims, thereby reshaping the culture and balancing the litigation environment without modifying the foundational rules of engagement.

Howard Smith, an obstetrics-gynecology specialist, emphasizes that these strategies can significantly reshape the environment, aligning it more closely with justice than the current system that benefits malpractice lawyers.