EXECUTIVE SUMMARY

Hospitals could see a surge in medical malpractice cases after the pandemic ends. An increase in elective surgeries, along with delays in diagnosis and treatment, may prompt part of the increase.

  • Delayed cancer screenings could bring claims of failure to diagnose.
  • Plaintiff attorneys will test federal immunity laws.
  • Depend on solid risk management policies and procedures.

The COVID-19 pandemic still has many hospitals and healthcare facilities straining to maintain anything like normal operations. But that pressure will eventually ease, and more patients will return for routine care and elective surgeries. Some risk managers and healthcare leaders worry this will prompt an increase in medical malpractice cases.

Claims could grow as hospitals perform more elective surgeries, possibly even at a higher volume than before to make up for revenue lost during the pandemic. That increase in the number of procedures could produce its typical number of claims per procedure, but that could be even higher if hospitals push their surgical teams too hard in search of revenue.

Delays in diagnosis are another worry. Failure to diagnose cancer is one of the most common medical malpractice allegations. With patients hesitant to enter a healthcare facility during the pandemic or unable to schedule an appointment, the number of cancer screenings has decreased sharply, according to the National Cancer Institute (NCI). A December 2020 summary of NCI research and other studies revealed decreases of up to 85% in cancer screenings, like mammograms and colonoscopies, during the pandemic. Those delays could result in an additional 10,000 breast and colorectal cancer deaths over the next 10 years, the researchers suggested.

Hospitals and physicians probably should prepare for a wave of malpractice lawsuits, says Emily L. Fernandez, JD, partner with Wilson Elser in White Plains, NY. In addition to any increase in elective surgeries and delayed diagnoses, malpractice allegations stemming from COVID-19 care could arise.

“I believe the most immediate influx of lawsuits to come down the pike will be cases arising from care and treatment in 2020 and 2021 that courts did not dismiss under more recently enacted immunity statutes relative to the COVID pandemic, such as the PREP [Public Readiness and Emergency Preparedness] Act,” Fernandez says. “Despite federal and state governmental efforts to provide a degree of immunity to protect healthcare providers during such an unprecedented time, courts have been reluctant to dismiss cases pursuant to immunity statutes.”

Those matters must now be litigated, she says. A primary inquiry will be the standard of care during that unique time.

“Even though I believe many healthcare providers will ultimately prevail, the cases will still require time and expense to resolve,” Fernandez says.

More Elective Procedures

Healthcare facilities will handle more elective procedures as COVID-19 cases wane. That would be good for hospitals, which generate revenue from elective procedures, Fernandez says. Increased demand for elective procedures should lead to increased supply, but does not and should not translate into a greater incidence of malpractice lawsuits if the standard of care is followed.

“I believe policies can be put in place with an aim toward smarter, more streamlined hospital visits when it comes to elective surgeries to address the demand and result in benefit to hospitals, insurance providers, and patients,” Fernandez says. “Particularly with respect to surgical admissions of private patients, policies may be implemented to emphasize more robust and regimented outpatient care both pre- and postoperatively.”

For example, before admission, a hospital might choose to require comprehensive documentation of diagnosis, evaluation, pre-testing and clearance, insurance information, and informed consent, most of which could be completed electronically and already available in the patient’s electronic medical record.

After surgery, patients should be discharged promptly and properly to free up space and staff for the next patient. A hospital might require patients to be discharged when stable; discharge instructions might include a short interval follow-up visit scheduled for a specific date with a specific provider or primary care doctor identified pre-admission.

Safely shortening admission times benefits everyone. This could allow for a greater volume of elective surgeries and, thus, increased revenue for hospitals. The key is to create policies and procedures that maintain the standard of care and optimize patient safety while shortening admission times, Fernandez says.

Patient Reminders Needed

There also is a concern that patients need more in-depth, complex care due to a lack of preventive care in recent years. More advanced care can bring higher malpractice risks, Fernandez notes. It is unclear if this would lead to more claims.

More care, complex or not, likely will be needed because of the dearth of patient willingness to seek routine, preventive care during the height of the pandemic. Fernandez says hospitalization is unlikely, except for advanced cases.

“We lost a significant amount of time — about one and a half years at this point — but for many it is not too late to get back on track through outpatient measures. Encouraging primary care treatment through portals, texts, emails, letters, and clinic notices will be the best line of defense,” she says. “Electronic reminders can be powerfully effective. In an effort to reduce hospitalization for emergencies such as a heart attack or stroke due to uncontrolled or poorly controlled underlying conditions during the pandemic, hospitals with clinic offices or affiliates should join in the effort to encourage primary care or maintenance treatment.”

Risk managers should implement specific policies with respect to COVID-19 and elective surgeries, Fernandez says. First, she urges strong consideration for a COVID-19 consent form, which would be a separate, standard informed consent form for vaccinated and unvaccinated patients that clearly and simply reflects these three main ideas:

  • The patient is aware there is an ongoing pandemic of a highly transmissible respiratory virus causing COVID-19, which can cause life-threatening complications, including death.
  • The hospital is actively engaged in treating patients with COVID-19.
  • The patient is aware of and accepts the risks of exposure to COVID-19 while at the hospital despite the hospital’s efforts to prevent exposure.

In addition, Fernandez says healthcare risk managers should consider limiting elective surgeries only to individuals who provide proof of proper and up-to-date vaccination. Even then, a COVID-19 consent form still would be necessary because of the growing incidences of breakthrough infections and understudied ability of a vaccinated person to transmit the virus.

“It also may be advisable to obtain a general release of any and all claims and causes of action arising from or relating to exposure or contraction of COVID-19 during a hospital visit for an elective procedure,” Fernandez says. “Obviously, the hospital does not want to impose measures that will cause patients to seek treatment at other facilities with less demanding preconditions to elective procedures, so perhaps this could be a voluntary option until patient response can be assessed.”

Patients Could Be Sicker

In addition to the pandemic’s tremendous strain on providers, and patients forgoing routine health screenings, there appears to be an increase in sedentary behaviors, obesity, and likely diabetes, says Elizabeth L.B. Greene, JD, partner with Mirick O’Connell in Worcester, MA. There likely will be an increase in delayed diagnosis of cancers and cardiovascular diseases — caused by the pandemic, not the providers.

A focus on or return to the basics of risk management and quality of care will continue to be important, Greene says. Good documentation, appropriate patient education and assessment, referrals to specialists, and attention to following guidelines in patient care will lower any liability risk.

“Risk managers will also want to pay attention to the providers, some of whom may be suffering from post-traumatic stress syndrome secondary to COVID-19 or other mental or emotional challenges as we come out of this pandemic,” she says. “Risk managers will want to familiarize themselves with the signs of burnout and trauma in providers.”

There is a significant amount of anticipation in the healthcare community about a potential increase in claims in the coming months, says Aaron Richard, president of Argus Risk Advisors, an insurance broker based in New York City. It is unknown whether COVID-19 treatment issues will prompt a wave of claims.

“The early impression by our people on the liability side is that they are cautiously optimistic,” he says. “But that could all change very quickly in the next six to 24 months as all of this opens up.”

The biggest determinant will the federal immunity laws and how they are tested in court, Richard says. Plaintiffs’ attorneys will try to find a way around the immunity laws. If early attempts are successful, that will prompt more claims.

“They will be looking at things like willful misconduct, which is a common exclusion in those laws, but it’s also a common policy exclusion,” Richard says. “That could be a potential workaround for a small number of cases.”

However, the COVID-19 immunity laws likely will offer no protection for malpractice claims unrelated to COVID-19 treatment, such as those arising from more elective surgeries after the pandemic. However, Richard is skeptical about a surge in elective surgeries, at least in some specialties. In plastic surgery and bariatric surgery, physicians are unlikely to take on such a volume of elective surgeries that the liability risk is higher.

“I know from speaking to our surgeons and anesthesiologists in those fields that they are not going to accept an increase that threatens their quality of care,” Richard says. “They’re busy and getting back to normal levels, but I don’t think there will be an increase where they will go much over the levels they were pre-COVID.”

SOURCES

  • Emily L. Fernandez, JD, Partner, Wilson Elser, White Plains, NY. Phone: (914) 872-7509. Email: emily.fernandez@wilsonelser.com.
  • Elizabeth L.B. Greene, JD, Partner, Mirick O’Connell, Worcester, MA. Phone: (508) 860-1514. Email: egreene@mirickoconnell.com.
  • Aaron Richard, President, Argus Risk Advisors, New York City. Phone: (516) 776-9218.