KevinMD January 26, 2025
Howard Smith, MD

I write these words after a full week of jury deliberation in the Daniel Penny trial. I now realize that what I have been describing about medical malpractice litigation is a signal of a much more serious problem infecting the social order of the entire country. It goes far beyond 85,000 medical malpractice lawsuits filed per year and even the inability, or the unwillingness, of finders-of-fact to discriminate between a medical error and an error-of-nature.

In 1975, the School of Health Policy and Management at the University of California alludes to this problem. Medical malpractice lawsuits do not differentiate a medical error from an error-of-nature because of bias in the judicial threshold of preponderance of evidence. It has a “coefficient...

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