After COVID-19 brought the state and federal judicial systems to a standstill for much of 2020, most courts have reopened. However, a backlog of cases still remains, with criminal trials receiving priority over civil ones. That means the jury is still out on how many — or how few —COVID-19 related medical professional liability (MPL) claims there are.
Data from global law firm Hunton Andrews Kurth indicates that there are fewer of these cases than the worst case scenarios predicted at the beginning of the pandemic. The firm's data shows that of the more than 12,000 COVID-19 related lawsuits filed between January 2020 and September 2021, fewer than 500 were related to health/medical.1
Those that see COVID-19 cases waiting in the wings include several publicly traded insurance companies that have set aside millions in reserves specifically to deal with pandemic-related claims. Yet, it's difficult to determine what constitutes sufficient reserves when it will take several years for these cases to either settle or go to trial.
"Proving causation on a virus is going to be really difficult to do," explained Karen Bennett, area senior vice president, Risk Placement Services (RPS). "Attorneys are opportunistic. While negligence or misdiagnosis related to treating a COVID-19 patient may still find some coverage, an allegation of spreading the virus would be a tough verdict to win. Many attorneys may decide that it's simply not worth their time."
While the true impact of COVID-19 on MPL claims remains to be seen, the evidence is clear that the pandemic has had an impact on many aspects of healthcare, both from a patient and provider perspective. Those changes may lead to COVID-19 being an indirect cause of MPL claims in the future.
During the height of the pandemic, many people put routine healthcare and screenings on hold, which in some cases may have delayed disease diagnosis. Others delayed treatment or avoided emergency rooms for fear of contracting the virus.
Healthcare professionals, especially nurses and doctors, have reported increased feelings of burnout. This has led to staffing shortages at hospitals and long-term care facilities.
How and where healthcare is delivered has also changed.
Telemedicine has experienced a significant uptake in activity, both for diagnosis and as a screening tool to determine whether an office visit is essential. Responding to this pandemic-related trend, many states changed laws or policies to expand health insurance coverage for telemedicine. And because not all communications technologies are 100% secure, the federal government relaxed some HIPAA privacy rules to facilitate telehealth during the pandemic. In addition, Medicare expanded its coverage of telemedicine.
While the number of MPL claims related to telemedicine is historically low that is likely to change. With a four-figure increase in the number of telemedicine visits since the start of the pandemic, it is inevitable that claims will rise. That is because MPL claims have a positive correlation to the number of patient encounters.
"While telemedicine allowed many patients to see a healthcare professional during COVID-19, ultimately it's difficult to replicate that in-person doctor/patient interaction," observed Kyle Pass, a broker with RPS. "Technology is wonderful but it can create communication challenges, particularly if a doctor is new to telemedicine or a patient is either new to or less than comfortable with teleconferencing software. It's hard to build that true doctor/patient relationship when not in person."
Learn more about the impacts COVID-19 had on Medical Professional Liability claims in the 2022 U.S. Healthcare Market Outlook.
1 Hunton Andrews Kurth, COVID-19 Complaint Tracker, accessed September 28, 2020.