By Howard Smith, MD

In my research on the case selection criteria used by plaintiff medical malpractice attorneys, one very prominent plaintiff attorney in Maryland spills the beans. He proudly proclaims, “We, who are plaintiff attorneys, take on medical malpractice caused by doctors, but we only accept 1 out of every 37.5 cases we review.” This is done unselfishly and without appreciation.

Seen another way, 87,000 medical malpractice cases are filed every year in the United States. If this represents 1 out of every 37.5 cases reviewed, 3,175,500 cases are rejected. Undoubtedly, some of them have merit, even more merit than those represented.

Of the 87,000 lawsuits filed, the number having merit is unknown. What is known, however, is 70%, or 61,000, are dismissed, and 26,000 continue. Of these, 35%, or 9,100, are settled, which corresponds to 10.5% of the total, and 16,900 proceed to a verdict. Of these, 94.5%, or 16,030, are defense verdicts, which is 18.4% of the total, and 870, or 5.1%, are plaintiff verdicts, which is 1% of the total. Assuming that all settled cases and plaintiff verdicts in 87,000 lawsuits have merit, that number is only 10,005, or 11.5% of the total. If this corresponds to the sample rejected, 365,183 potentially meritorious cases are rejected.

This attorney then enumerates the reasons for rejecting a case. They include:

Legal theory. Merit really is less of a factor because all the cases that he rejects, meritorious or not, are rejected because they do not fit his legal theory.

The age of the plaintiff. If, up to this attorney, a potential client beyond a certain age has no legal recourse, even if seriously injured by a doctor, because they do not live as long.

Limitation on damages. There are always economic damages. There are also non-economic damages—a cost to life expectancy and quality of life because an injury a client suffers most certainly can reduce life expectancy and quality of life. If up to this attorney, people who are damaged have no legal recourse unless economic damages equal or exceed certain financial criteria acceptable to them.

A suitable expert witness. Medical experts are essential. A medical expert forms an opinion using a very low bar—50% probability plus a scintilla. These experts know nothing else, and nothing else is expected from them. It makes little difference how competent an expert may be. What matters more is how partisan they are. His expert witnesses are hired guns in complete agreement with his legal theory.

Potential legal costs. This plaintiff’s attorney represents cases on contingency. Theoretically, this gives clients who otherwise may not have the financial resources to seek legal counsel access to legal counsel. “If we don’t win, you don’t pay.” Nevertheless, people who are damaged have no legal recourse unless they agree to a contingency fee of 33.3% of a plaintiff’s verdict or 40% of a settlement plus other charges.

Causation. According to this attorney, causation is “very difficult to prove.” Expert witnesses, not plaintiff attorneys, determine proximate cause, which is the link between departures from the standards of care and injuries. However, the witnesses he hires are so partisan that they cannot prove causation, even if it is presented to them on a silver platter.

This plaintiff’s attorney concludes that this is what society expects of him and that he needs to be “very, very selective” with the cases he chooses to represent. I contend that by using his criteria, he is making the wrong selection because he likely rejects cases that have more merit than those he chooses to represent. Rejecting such cases is antithetical to what society expects of him.

Hypocritical is an understatement. This plaintiff’s attorney goes on to blame this lopsided ratio of case rejection on malpractice insurance companies, the medical profession, and economics. However, he is not the victim of a frivolous lawsuit; he causes them.

I would be the first to admit that doctors should pay for the injuries they cause; this is what society expects of them. However, they are paying for the frivolous lawsuits that lawyers like him cause. What emerges is a medical liability litigation industry worth about $200 billion per year of which he is a part. It includes all malpractice attorneys, all expert witnesses, the tort system, and all malpractice insurance companies. The enterprise in which the medical liability litigation industry engages is a shake-down racket.

The medical liability litigation industry is akin to the mob. Plaintiff attorneys are the bosses; malpractice carriers are the underbosses; the tort system is the consigliere; defense attorneys are made-men; and expert witnesses are the hired guns. Doctors pay for protection, not from meritorious lawsuits, but from frivolous ones. This is how the medical liability litigation industry prospers.

This plaintiff’s attorney spills the beans. However, there are 67,000 personal injury law firms in the United States with attorneys just like him. If the above figures hold true, each firm reviews 50 medical malpractice cases per year, rejects 48.7 of them, and files 1.3 lawsuits that have a 1% chance of winning (average plaintiff verdict = $1 million) and a 10.5% chance of settling (average settlement = $250,000). This is hardly efficient, yet they make their livings from this lopsided ratio for case selection. According to this attorney, case selection is necessary because they represent cases for “the greater good of society.” If you cannot be competent, be altruistic.

In truth, plaintiff attorneys do not reject 36.5 out of 37.5 cases out of altruism; they do so out of self-interest.

I developed a way to prove causation with 95% confidence and cast doubt on causation with equal confidence. Instead of 87,000 malpractice suits, there may be as many as 375,188, but all will be meritorious. Instead of protracted frivolous litigation, there will be expedient settlement. Overzealous jury verdicts and appeals would be avoided. Total litigation costs would be reduced, as would malpractice premiums. All parties will benefit, and justice will be served.

Howard Smith is an obstetrics-gynecology physician.