Which doctors are at risk?

A pregnant patient with COVID-19 presented to the hospital with breathing difficulties caused by her illness. Doctors had to perform an emergency delivery of her near-term baby.

The infant survived, but the woman lost oxygen during the ordeal and suffered hypoxic brain damage. She is now suing an obstetrician, a pulmonologist and an intensive care unit (ICU) doctor for medical malpractice.

The plaintiff alleges there was “not adequate recognition and treatment of her condition,” said Peter Kolbert, senior vice president of claims and litigation services for Healthcare Risk Advisors, part of the group. TDC, which includes national medical liability insurer, The Doctors Company.

“The doctors involved vehemently disagree and believe they treated her appropriately,” Kolbert said. “In fact, we think their actions were heroic.”

In another case, a patient with COVID-19 and multiple comorbidities was admitted to hospital. Doctors calmed and intubated the patient to maintain her airway. She recovered, but the patient now alleges doctors were negligent because she developed ulcers while in hospital. The case occurred at the height of the pandemic. In addition to the hospital, a pulmonologist, intensive care physician and acute care physician are named in the lawsuit.

Both of these lawsuits are defined as COVID claims because at the time the plaintiffs either had COVID and needed care because of COVID in some way, or because the care provided by the doctors have been affected by COVID in one way or another.

In the second case, the patient had COVID and needed treatment. During his recovery, ulcers developed. An important aspect of this case is that it happened at the height of the pandemic. Hospitals were overcrowded, staff overwhelmed and resources limited. One factor may be that doctors were doing their best at the time, but the pandemic affected the scope of care they could provide.

Physicians have long been concerned about the legal consequences of COVID-19 and the potential for lawsuits to arise from care provided or delayed by the pandemic. Now, new data reflects the grim news: COVID claims have arrived. These cases from the claims database of The Doctors Company, a national medical malpractice society, are just two examples of the many COVID-related claims that have been seen since the start of the pandemic.

Currently, there are 162 open COVID-related claims in The Doctors Company’s database, according to Kolbert. One September 2022 benchmark report from Aon and the American Society for Health Care Risk Management says 245 claims involving patients with confirmed or suspected COVID-19 have been filed since the start of the pandemic. The findings of this report stem from an analysis of 95,600 hospital and medical liability claims that arose between 2012 and 2021.

Of the 245 cases, 89 files have been closed. The average cost was $43,000 per claim, said Kanika Vats, director and actuary of Aon, a global company that provides risk, reinsurance and health solutions. Six of the claims cost $300,000 or more; the highest settlement was $700,000.

“Most of the allegations in these claims revolve around delayed treatment or delayed diagnosis,” Vats said.

What specialties are involved in legal actions?

Doctors working in acute care settings such as emergency departments and urgent care centers are the main targets of COVID-related lawsuits involving doctors, legal analysts say. However, other specialties are also concerned. Among the doctors prosecuted, some practiced telemedicine during the pandemic.

In one case, a primary care physician saw a patient via telemedicine because the physical doctor’s office was closed. The patient was assessed virtually and was sent for blood work and an x-ray.

The patient is now suing the primary care physician, alleging that the failure to send her to the hospital immediately resulted in tuberculosis untreated and that failure led to a poor outcome. The allegation is that the doctor under-assessed the case during the telemedicine visit, Kolbert said.

Drew Graham, an attorney at New York-based Hall Booth Smith PC, said most of the COVID-related liability claims he’s seen have involved facilities that provide post-acute care, such as nursing homes. and assisted living facilities. His firm has also seen a small number of COVID-related claims against doctors.

At least two of the claims involved allegations of improper treatment of COVID during hospitalizations, he said. Another involved a telehealth visit during which the patient claimed that the virtual care provided was inappropriate and that his condition required an in-person examination. Graham declined to specify the specialties of the doctors being sued.

The Medical Professional Liability Association (MPL Association) reports similar trends in COVID-related claims. According to Kwon Miller, data and analytics manager for the MPL Association, a national trade association for medical liability insurers who operate a large claims database.

Between January 2020 and June 2022, the MPL Association Data Sharing Project recorded 280 COVID-19 events. “Events” refers to notices, licensing board inquiries and claims involving COVID. Of those events, 180 were closed with no indemnity payment and 13 were closed with an average indemnity payment of $3,816, Miller said.

Complaints of delayed care related to the pandemic are also on the rise. For example, a patient sues a gastroenterologist for delaying his colonoscopyalleging that the postponement caused a delay Colon Cancer diagnosis and worse prognosis, Kolbert said.

“It was delayed because all elective procedures at the time were postponed,” he said. “The patient claims that had he received the planned screening, the cancer would have been diagnosed as stage I rather than stage III.”

Why doesn’t federal immunity protect doctors?

A pressing question regarding the growing number of COVID claims is why state and federal immunity does not preclude such lawsuits.

In 2020, the US Department of Health and Human Services released a statement as part of the Public Readiness and Emergency Preparedness Law (PREP law) which granted immunity from liability to medical professionals for any activity related to medical countermeasures against COVID-19. The law allows an exception for negligence claims associated with death or serious injury caused by willful misconduct.

At the same time, most states have implemented laws or executive orders protecting physicians from liability claims related to the prevention and treatment of COVID-19 unless gross negligence or willful misconduct occurs. be proven.

Graham said some COVID-related claims against doctors include allegations of gross negligence to avoid the application of state immunity, while others combine allegations of deviations from standards of care without relation to the pandemic.

Some complainants attempt to circumvent protections by making the complaints appear unrelated to COVID-19, Kolbert said. This way, they don’t have to prove gross negligence or willful misconduct at all.

“The prima facie deposits might not tell you it’s a COVID case, but it might be a COVID case,” he said. “Plaintiffs’ attorneys are trying to argue that the COVID defenses don’t apply and that these cases are ‘traditional physician negligence’ claims. They’re trying to argue around the protections.”

Federal and state immunities are likely keeping the overall volume of COVID claims low and discouraging some complaints from proceeding, attorneys say.

But because some plaintiffs downplay or ignore the COVID association, it’s likely there are more COVID lawsuits than anyone realizes, according to Kolbert.

“I would expect there to be an understatement of the true number of COVID claims,” ​​he said.

What does the future hold for COVID claims?

Currently, the frequency and severity of COVID claims are low, Vats said. She believes the cost of these claims will continue to remain at low levels.

“But again, there’s a lot of uncertainty,” she said. “This year, states have begun to reduce their immune protections, and in many states there is no cap on the award [noneconomic] damage. There could well be a scenario where they allege wrongful death, and in a state with no cap on the pain and suffering component, if jurors continue to behave as they have behaved, we might see aberrant verdicts. »

Another lingering issue concerns the competent court systems in cases involving COVID-related claims. Because of the nationwide response to the pandemic, Graham thinks it makes sense for federal courts to hear the cases, but the plaintiffs’ bar has generally opposed federal jurisdiction.

“A second issue is the long-term impact of COVID litigation on our suppliers,” he said. “If the protections in place to limit liability are deemed ineffective, our state and federal leaders must act in an aggressive, bipartisan manner to ensure our health care providers are protected as we face the next crisis.”

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Martin E. Berry