As the world braced itself for a global pandemic, the medical professional liability (MPL) industry prepared for its own Category 5 storm of claims. Now, nearly 17 months later, dark clouds still loom, but the anticipated events have not come to pass. Yet despite our best radar, no one can yet predict the future.
“While we may not have seen the surge of claims some expected, it is premature to say that the danger is over,” says Stephanie Sheps, Vice President of Claims at Coverys.
What we can do, according to Sheps, is analyze the current trends as well as the impact of factors including legal immunity that will contribute to the potential outcomes.
As of May 2021, the U.S. has documented millions of COVID-19 positive cases, resulting in over a half-million deaths. Along with the growing perception that many of these deaths may have been preventable comes the specter of litigation. It has been estimated that over 10,000 lawsuits have been filed to date, including suits against prisons, hospitals, long-term care facilities, medical providers, airlines, cruise lines, and municipalities.
Though only a small percentage of these lawsuits are estimated to be health and medicine related, the MPL cases that have been filed need to be viewed through the lens of both federal and state immunity.
At the federal level, the Public Readiness and Emergency Preparedness (PREP) Act provides immunity from liability for claims against those working to combat the pandemic through defined counter measures. As states were comparatively slow to enact immunity laws, early COVID-19-related claims relied upon the PREP Act for protection. To avail themselves of the PREP Act, defense teams attempted removal to federal court. While some courts have allowed removal to federal court and dismissal under the PREP Act, many if not most federal judges are trending toward remanding the case to state court to force the application of the state’s immunity protection, if any.
“As litigation proceeds, expect plaintiff attorneys to plead Covid-19 and pandemic related complaints in a way to circumvent both state and federal law, for example by alleging willful or intentional conduct,” Sheps notes. “This may impact liability, as willful and intentional conduct are standard policy exclusions. Even if these allegations lack merit, when pleaded in this fashion, coverage can be compromised.”
After an initial dip, new claim frequency has reverted to pre-pandemic levels and remains flat compared to prior years. The adverse or unexpected outcomes that form the foundation of malpractice suits may not be readily apparent, either. Considering that the majority of MPL claims involve a delay in diagnosis, it follows that these delays may be equal to, if not greater than, the delayed diagnosis experienced in the pre-pandemic setting.
Additionally, while there may be a short-term benefit due to drastically limited routine check-ups, elective surgeries, and screening procedures, this is not likely to be sustained. As elective procedures and routine in-person visits have resumed, providers and hospitals have faced not only the risks associated with managing the backlog, but also managing risk within the context of strict COVID-19 protocols.
Adhering to these protocols places providers at an increased risk of burnout, a major cause of medical errors. Recent studies show that U.S. healthcare providers exhibit some of the highest rates of burnout. Both the physical and psychological stress of treating patients during a pandemic impact provider performance and outcomes.
Finally, keep in mind the potential exposure caused by the dramatic spike in the use of telehealth services. While healthcare’s pivot has been laudable, it remains to be seen whether there is any untoward impact from the unanticipated shift to delivering healthcare virtually. These are just some of the questions that contribute to the uncertainty of future outcomes and claims.
As these clouds of uncertainty have not yet dissipated, Coverys will continue to closely monitor events, leading the industry in risk mitigation and management, analysis, claims acumen, and litigation strategy. Even viewed through the most optimistic lens, we believe the impact of the pandemic could be felt for years to come.
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