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The coronavirus pandemic could lead to increased medical malpractice claims, but much remains uncertain at this point, including the possibility of federal and state governments acting to relieve health care provider liability, say observers.
Experts say increased claims could stem from hospital systems’ lack of preparedness for a pandemic, their failure to diagnose the disease, coronavirus patients’ treatment, patients who are inadvertently exposed to the disease and situations where unrelated procedures are delayed because of the virus.
These experts note the market has already tightened somewhat.
With the situation so much in flux, the outlook is uncertain, say experts. “Quite frankly, it’s a struggle because we’re not certain where this is going to go,” said Martha Jacobs, Pittsburgh-based managing director and national health care practice leader for Aon PLC.
John Geisbush, Phoenix-based managing director, health care practice, for Marsh LLC, said, “It’s kind of difficult to make blanket statements. What we can say at this point is the markets in general are not advising us of any restrictions or restrictive limitations at this point.
“Obviously, there’s a lot of things in motion right now,” he added, however. “This is a unique situation in some ways.”
Mike Stinson, vice president, government relations and public policy, for Rockville, Maryland-based Medical Professional Liability Association, a trade association, said, “We’ve talked to many of our members about it, and it’s something they’re paying attention to, and focusing on, and taking steps to address as potential issues pertaining to liability that may come up because of the need for health care during the course of the crisis.”
Michael Maglaras, Ashford, Connecticut-based principal with insurance and risk management consultancy Michael Maglaras & Co., said if this situation follows what has happened in the past, “we can see claims arising from a failure first to diagnose patients,” then a failure to adequately treat them.
Dr. John C. Evanko, chief medical officer for Burlington, Vermont-based med mal insurer MCIC Vermont, a reciprocal risk retention group, said, if many health care systems cancel or delay elective surgery, it may reduce medical malpractice claims, although an economic downturn may increase them.
Health care systems “have to be very judicious and weigh the pros and cons of delay. If it’s truly elective surgery, it should be fine,” he said.
Mr. Geisbush said at this point, “we’re not hearing” about procedures for other health issues being delayed. “Obviously, every patient situation is going to be different.”
Medical malpractice claims may increase, say observers. “We are an exceptionally litigious society,” said Mr. Maglaras, who advises health care systems that have captive insurance companies.
“We are in for a rash of litigation” if there are cases of those who should not have been infected, become infected, or where the disease was undiagnosed.
Ms. Jacobs said one issue of concern is staff burnout and lower morale. “On the flip side,” this issue could change the dynamics of social inflation “which has driven up the value” of medical malpractice claims.
Many times, “juries don’t seem to have an appreciation of how large verdicts affect health care providers,” she said. “This type of event might have some positive effect that lack of appreciation, if you will.”
Mr. Stinson said the normal time frame between an alleged negligence and a claim is about two years, “so I don’t think we’re going to see a real impact to this for some time yet.”
Observers note the med mal market has already been hardening. “The market has already started to harden,” because of claims severity as insurers have struggled to make a profit in this line of business for several years, said Ms. Jacobs.
“If we’re looking at the next 12 to 24 months,” it is a good assumption there is a high likelihood the volume of claims activity increasing because a higher volume of people is using health care, she said.
This creates “greater pressure on carriers to figure out how to stay in the business of writing med mal and doing it profitably,” she said.
However, Mr. Stinson said, “I wouldn’t expect there to be a dramatic change just based on this.”
Experts say one possibility is government intervention. There have been discussions by med mal insurers of reaching out to state legislators “to see if any kind of liability protections can be put in place to address this particular health crisis,” Mr. Stinson said.
In addition, his organization has been reaching out to the federal government, focusing for now on legislation that would protect volunteers, Mr. Stinson said.
S.B. 1350, which was most recently introduced into the Senate in May, would amend the Public Health Service Act to limit the liability of health care professionals who volunteer to provide health care services in response to a disaster. An earlier version of it was first introduced in 2016.
“Anything’s possible,” said Mr. Geisbush. Obviously, federal, state and local governments are “imposing particular criteria with respect to dealing with the virus, and I guess it will remain to be seen how those decisions” affect future liability.
More insurance and risk management news on the coronavirus crisis here.
Open questions about coverage surrounding the coronavirus may well turn on the definition of physical damage and whether the virus or its presence meets that threshold, legal experts say.