James Haliczer, an erstwhile defense attorney turned plaintiff attorney, audaciously claims in a YouTube video that “there is no such thing as a frivolous lawsuit.”
There are ten species of stakeholders in medical malpractice litigation: claimants, plaintiff attorneys, defendants, defense attorneys, medical experts, medical expert directories, mentors, malpractice insurance carriers, and jurors. They are part of the medical liability litigation industry.
With the exception of defendants and jurors, each prospers from $55.6 billion per year. Those who prosper will not refute Mr. Haliczer’s notion, outrageous as it is.
The $55.6 billion includes over 3 million malpractice claims, which are reviewed by 64,000 plaintiff law firms, filing 85,000 lawsuits per year. Therefore, for every 37.5 cases reviewed, only one case is represented. Plaintiff attorneys have their own criteria for case selection. Merit, as it is commonly known, is not included.
As evidence, in the 85,000 cases represented, 27,000 are settled, and 1,200 are plaintiff verdicts. For the most part, plaintiff verdicts and settlements can be regarded as having merit. This is one-third of all cases. Conversely, 52,000 are dismissed, and 4,800 are defense verdicts. These can be regarded as not having merit. This is two-thirds of the 85,000 cases. If selection criteria included merit, this could not happen.
There are 1 million doctors. Each has an 8.5% chance of being sued per year, and each lawsuit has a 66.7% chance of being frivolous.
Do you think there is a problem here?
If James Haliczer is a representative, plaintiff lawyers are not. The reason for his assertion is that “frivolous lawsuits are just too expensive to litigate.” With this excuse, Mr. Haliczer spills the beans.
Mr. Haliczer asserts that there are no frivolous lawsuits because, for him, there are none. This is because plaintiff attorneys, like him, make a frivolous lawsuit appear to have merit. This gives a frivolous claim of negligence an artificial value so that a plaintiff verdict or a settlement is possible. When this does not work, it does not mean there is no merit. In litigation, mistakes happen.
Nevertheless, when two-thirds of all litigation decisions do not end according to Mr. Haliczer’s expectations, it is not because of a mistake.
There are mistakes. Claimants who do not self-examine merit in their claim surrender to others who will make these judgments. Likewise, defendants who do not self-examine their culpability surrender to others who will make these judgments. These are mistakes.
What follows are the biases of provocateurs and accomplices to whom claimants and defendants surrender.
Plaintiff attorneys who advertise they win lawsuits are provocateurs. To stay in business, they insert merit into frivolous lawsuits, which is biased.
Defense attorneys are complicit. For them, frivolous lawsuits are billable hours. To stay in business, they make excuses for extensions. This is a bias.
Medical experts are complicit. To stay in business, they selectively advocate for whatever side retains them. This is a bias.
Medical expert directories are complicit. To stay in business, they promote the services of medical experts. This is a bias.
Mentors are complicit. To stay in business, they offer instructions and advice only to provide emotional support. This is a bias.
Malpractice carriers are complicit. To stay in business, they keep defense attorneys, whom they hire, beholden to them. This is a bias.
Jurors are complicit. They allow themselves to be influenced by emotion. This is a bias.
Indeed, frivolous cases are expensive, and so they should be because they are founded on mistakes or biases in traditional decision-making by each stakeholder.
Traditional decision-making is inductive reasoning. It is subjective. Subjectivity is the sine qua non of bias. Its fundamental principle is “preponderance of evidence.”
All decision-making techniques have a “level of confidence.” It is the odds of being right. For preponderance of evidence, the level of confidence is “50% probability plus a scintilla.” Scintilla is discretionary, and in traditional decision-making, it is just a smidgen. Even a coin toss has a 50% probability.
All decision-making techniques have a “type-1 error.” It is the odds of being wrong. For preponderance of evidence, type-1 error is “50% minus a scintilla.”
For the above reasons, traditional decision-making is only slightly better than a coin toss.
Hypothesis testing is different. Hypothesis testing is deductive reasoning. Deductive reasoning is used in court all the time. It is discussed by the Daubert decision. It is objective. Objectivity is the antithesis of bias.
When adapting hypothesis testing to medical malpractice, scintilla, which is discretionary, is given a value of 45%. Now, preponderance of evidence has a level of confidence of 95% and a type-1 error of 5%.
If Mr. Haliczer, or any plaintiff attorney, dares to insert merit in a frivolous case using 50% probability plus a scintilla, hypothesis testing exposes this manipulation with 95% confidence.
A stakeholder should want to use hypothesis testing.
First, it undoes mistakes made by claimants and defendants. It assures a claimant that a meritorious complaint is appropriately represented. It encourages a defendant to proactively demand the best defense of a frivolous claim and the most expedient settlement of a meritorious one.
Next, it avoids biases of all the other stakeholders. It prevents a plaintiff attorney from manipulating a frivolous lawsuit. It holds a medical expert accountable to professional codes of conduct. It keeps an expert directory conscious of whom it promotes. It keeps a mentor conscious of what it instructs or advises. It refocuses a malpractice carrier on a legal strategy that best serves the insured rather than on a legal strategy that best serves it. It refocuses the defense attorney’s professional obligation to be an advocate for the defendant, who is a client, rather than to be an advocate for itself. It discourages a juror from being influenced by bias in evidence because any rational person intuitively knows that 95% confidence is better than 50% probability plus a scintilla.
Howard Smith is an obstetrics-gynecology physician.
