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Convergence of coronavirus, flu could boost med mal claims


The convergence of the coronavirus, which has seen a recent surge in cases, with the oncoming flu season could lead to diagnostic errors that will increase medical malpractice claims, some experts say.

Many initial flu symptoms, including fever, fatigue and sore throat, are almost indistinguishable from those of COVID-19, they say.

While observers note the federal government and about 30 states have provided legal immunity for health care providers who treat COVID-19 patients, at least some of the protections have an expiration date.

Other factors related to COVID-19 also could have an effect on claims.

While there have been few COVID-19-related medical malpractice claims to date, many elective surgeries have been delayed, in some cases because patients fear their susceptibility to the virus if they enter a hospital, which could be causing a temporary reduction in med mal claims.

Delayed medical exams that lead to undiagnosed or worsening medical conditions, however, could drive up future med mal claims, experts say.

In addition, in an editorial published in Science magazine in June, National Cancer Institute Director Dr. Norman Sharpless projected that delayed cancer screening, diagnosis and treatment will lead to nearly 10,000 more deaths over the next decade from colorectal and breast cancers.

Another factor is much medical malpractice litigation has been put on hold because of the closure of some courthouses during the pandemic, they say.

The flu and COVID-19 “have similar presenting symptoms,” and “if you don’t get the right diagnosis,” there is potential liability, said Dr. John C. Evanko, chief medical officer for Burlington, Vermont-based med mal insurer MCIC Vermont LLC, a reciprocal risk retention group.

The flu and COVID-19 “are so similar in their early states as far as signs and symptoms that physicians may miss the diagnosis” and “put the patient at risk for essentially delaying necessary treatment,” said Susan Shepard, senior director of patient safety and staff education at The Doctors Co., a Napa, California-based medical malpractice insurer

In addition, COVID-19 may induce and/or obscure other illnesses, such as acute coronary syndromes and bacterial pneumonia, said Dr. J. Tristan Mueck, assistant medical director, education & underwriting, for Roslyn, New York-based EmPRO Insurance Co., in an email.

With this pandemic, “everything takes a little bit longer, whether it’s delivery of care, or when patients come in for care,” said Divya Parikh, vice president of research and education at the Rockville, Maryland-based Medical Professional Liability Association.

“When you add that to the complexity of diagnosing something that has very similar symptoms to another medical condition, in this case the flu, that raises a lot of concerns,” Ms. Parikh said.

Furthermore, some COVID-19 tests are more accurate than others, said Mike Stinson, the MPLA’s vice president of government relations & public policy.

While “there’s this flush of goodwill” toward the health care sector during the pandemic, this will likely recede and the plaintiffs bar will become more active, said Kirsten Beasley, Bermuda-based head of health care broking, North America, for Willis Towers Watson PLC.

Although, there is not yet a discernible increase in med mal claims, “that doesn’t mean they’re not occurring,” said Joshua Gold, a shareholder with Anderson Kill P.C. in New York.  

The lag between an incident occurring and a claim being reported means the bulk of COVID-19-related med mal claims are not expected until 2022, said Doctors Co. Executive Vice President Bob White.

To reduce the risk of med mal incidents, physicians should check in with officials at the hospitals they are with for the most recent information about COVID-19, said Michael Maglaras, Ashford, Connecticut-based principal with insurance and risk management consultancy Michael Maglaras & Co.

Health care providers should document their protocols for screening, visits and treatments, said Lainie Dorneker, Miami-based president of IronHealth, a Liberty Mutual Insurance Co. subsidiary.

Experts say that even before the pandemic hit, the med mal market was hardening, particularly for senior care risks. Capacity has also decreased, with the exit of some insurers from the market, and insurers that had been offering $25 million in capacity, are now putting up $15 million or $10 million, said John Geisbush, Phoenix-based managing director of Marsh LLC’s health care practice.

COVID-19 has “put further fear in the market” and caused further restrictions of capacity in some cases, he said.

“It’s been a mixed bag,” with some insurers taking “a more draconian approach” on the risks they will assume, others taking a more bifurcated approach and yet others acting on a deal-by-deal basis, said Martha Jacobs, Pittsburgh-based national health care practice leader for Aon PLC.