The COVID-19 pandemic is expected to lead to increased medical malpractice claims, particularly those arising from delays in diagnosis or treatment caused by health care providers’ distraction as they care for pandemic victims.
For now, though, claims overall are down, in large part because many courts were closed for months, they say.
There is also frequently a gap between incidents and claims, which means it could be 2022 or 2023 before some of these claims emerge.
The federal Public Readiness and Emergency Preparedness Act provides immunity from liability for the administration of disease countermeasures, and parallel state laws grant at least temporary immunity for COVID-19-related medical claims. But many question how well the state laws will hold up against expected challenges.
The increased use of telehealth during the pandemic and litigation funding activity in the sector could also lead to more lawsuits, experts say.
Meanwhile, the med mal market continues to harden. Several major players have left the market, although others have entered (see related story).
Many cases stalled in the judicial system while the courts were closed, and there is a question as to “what will happen when they turn the spigot back on,” said Rob Blasio, Houston-based managing director, GB Specialty, at Gallagher Bassett Services Inc.
Many believe that when things return to some degree of normality, the number of malpractice claims will increase. However, the outlook is unclear due to the delta variant, the possible emergence of other dangerous variants, the large number of people who have not been vaccinated, and the ongoing controversy over mask use.
“There’s the potential for a big increase (in med mal claims), but there’s so much uncertainty right now with how it will all play out,” said Sharon Marks, associate director at Oldwick, New Jersey-based A.M. Best & Co.
“People are caught up in other things right now, but I expect the litigation environment to increase again,” said Lainie Dorneker, Miami-based head of health care at Bowhead Specialty Underwriters Inc.
Observers generally say senior living and senior health care facilities will be the biggest target, followed by hospitals and then individual physicians.
Meredith Akerlind, senior vice president and chief claims officer at IronHealth, a Liberty Mutual Insurance Co. subsidiary, said nursing homes are a primary target of COVID-19-related claims because plaintiffs attorneys must establish their clients contracted the virus at a facility run by the defendant. “That’s an easier hurdle to get over in a site like a senior living facility,” she said.
Dan Joyal, vice president at EPIC Insurance Brokers & Consultants in Boston, said he expects med mal claims to increase “especially in those areas where COVID is more rampant, and people are less vaccinated and the hospitals fuller.”
Mike Stinson, vice president of government relations and public policy at the Rockville, Maryland-based Medical Professional Liability Association said there could be claims for delayed treatment for other medical issues, especially in states where health facilities turned people away because of providers’ focus on treating those in the greatest need.
Brian Tucker, senior vice president, medical professional liability, at Aspen Insurance Group in San Francisco, said in an email that while the insurer has seen relatively few COVID-19-related claims, “we expect a greater impact due to the disruption in preventive medical care, routine cancer screenings and ordinary patient-doctor visits resulting from office closures and other measures that have been in place to limit contact or discourage patients from seeking care when they otherwise would.”
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Failure to diagnose and delays in diagnosis “have always been top claims, traditionally, and I think we’ll see more of that going forward,” said Vicky Riggs, A.M. Best Co. Inc. senior financial analyst.
Health care facility staffs have “been gutted” by COVID-19, with remaining employees being asked to work graveyard or 24-hour shifts, leaving them exhausted, said Chad Follmer, health care practice leader at Woodruff Sawyer & Co. in San Francisco. “When that happens, mistakes happen.”
In senior facilities, the concern is there will be charges of failure to treat pressure ulcers, to adequately provide care, to properly supervise and to prevent slips and falls cases “because you were so wrapped up in COVID, and managing for that, that you weren’t doing the day-in, day-out care for residents,” said Joe Levy, Philadelphia-based senior vice president, traditional health care practice for Risk Strategies Co. Inc.
Physicians may be benefiting from the halo effect of being viewed as heroic amid the pandemic, but that could prove temporary, observers say.
Kati Bynon, Jersey City, New Jersey-based claims team leader, health care claims, at Beazley PLC, said, “We will see in the coming months if juries are really going to appreciate the sacrifice and commitment” health care providers made during the pandemic.
The increase in telemedicine’s use during the height of the pandemic may lead to claims, experts say. The University of Kansas Medical Center, for instance, went from fewer than five telemedicine consultations per week in February 2020 to more than 1,800 per day in April, according to a study.
Mr. Stinson said there will likely be an increase in claims related to telemedicine simply because it has been used so much more in the past year and a half.
While pre-COVID-19, the claims experience for telehealth was better than for in-person practitioners, during the pandemic, telehealth practitioners were doing more in terms of making diagnoses and writing prescriptions Mr. Follmer said, adding, “I fully expect the claims to match that going forward,”
The potential effect of litigation funding, in which money is provided by a third party to finance lawsuits in return for a share of the ultimate settlement or award, is another concern.
“There’s no question that litigation funding does create the possibility for more litigation in the future,” said Bob White, chief operating officer of The Doctors Co. and TDC Group, based in Napa, California.
One of the concerns surrounding litigation funding is the prospect of the firms putting together class-action litigation, said Rob Francis, Birmingham, Alabama-based executive vice president, health care professional liability, for med mal insurer ProAssurance Corp.
Meanwhile, health care providers are well protected by the immunity provided by the PREP Act, said James M. Beck, senior life sciences policy analyst with Reed Smith LLP in Philadelphia. “That’s pretty much at the heart of the PREP Act and I don’t think any litigation over that’s going to go very far,” he said.
“The federal PREP Act will be effective to the extent you’re talking about the provision of care that is directly related” to the vaccine administration and other countermeasures, Mr. Stinson said. But it “isn’t a kind of blanket immunity for the health care provider,” he said.
As for the state laws, “some are more effective than others,” he said.
In addition to these laws not being tested so far, and each being worded differently, “we’ll see whether or not they remain in place and for how long,” said IronHealth president Dennis Cook, referring to expiration dates for some of the laws.
Shellé Hendrickson, Hamilton-based head of healthcare, Bermuda, for Axa XL, said in an e-mail, “There are also some gray areas as to whether long-term care organizations will benefit from immunities in place.”
“One thing for certain is, a lot of the (plaintiffs) attorneys are very much waiting to see what happens with some of the early lawsuits to see whether the immunity laws,” will be upheld, said Tim Boyce, London-based head of professions and healthcare for CFC Underwriting Ltd.
If state immunity laws are successfully challenged “that could spur claims,” Mr. Levy said. “We have to see how those play themselves out in the legal system.”
Some major insurers have left the medical malpractice insurance market, although new players are replacing their capacity to a large extent, experts say.