Will malpractice cases skyrocket after the pandemic?

Medical malpractice—defined as medical care that falls below the accepted standard of care—is a complex area of law that has only become more intricate as COVID-19 continues to disrupt the nation. Given that the coronavirus pandemic is the leading health concern in 2020, doctors must be prepared to meet its unprecedented liability concerns. Uncertainty about the risk of exposure and the virus’s transmission will undoubtedly impact hospital and medical facility procedures, but to what extent will it impact medical malpractice cases? MDLinx consulted two top healthcare lawyers to discuss the potential for an explosion of malpractice lawsuits.

Current protections for healthcare workers

In a typical medical malpractice lawsuit, the burden is on the patient to provide proof that a medical provider deviated from the accepted standard of care, and that the patient was harmed as a result. Proving that a doctor’s negligent treatment was the cause of a health complication is a difficult undertaking. In fact, a study of the outcomes of medical malpractice lawsuits over a span of 20 years found that physicians usually win between 80% to 90% of the jury trials with weak evidence of medical negligence, approximately 70% of the toss-up cases, and 50% of the cases with strong evidence of medical negligence.

The good news for doctors? Those percentages might grow even higher thanks to new regulations. In March, the US Department of Health & Human Services issued an amendment to the Public Readiness and Emergency Preparedness (PREP) Act that broadly protects those who provide medical treatment for COVID-19. In addition, the Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed by President Trump on March 27, offers federal liability protection to volunteer physicians and healthcare professionals. The new law clarifies that healthcare professionals performing medical services related to COVID-19 during the pandemic are not liable for services that relate to the diagnosis, prevention, or treatment of COVID-19 or the assessment or care of a patient related to an actual or suspected case of COVID-19.

States have followed suit by enacting similar measures that protect healthcare workers during the pandemic. For example, an executive order issued by New York Governor Andrew Cuomo in March outlined several protections for healthcare providers, including relieving them from recordkeeping requirements. Plus, all 50 states have Good Samaritan statutes that provide immunity to licensed physicians who deliver care at the scene of a medical emergency.

New malpractice challenges

“The problem right now is that a lot of patients are afraid to go to the doctor unless they are pretty certain they have COVID-19,” said Michael Schaff, JD, MBA, an expert in healthcare, corporate, and commercial law and a shareholder at Wilentz, Goldman & Spitzer, Woodbridge, NJ.

Thus, physicians’ biggest malpractice challenge could end up being a failure to diagnose appropriately—a factor that becomes increasingly complicated as testing supplies continue to be scarce and patients increasingly difficult to access, Schaff said.

Aside from this, however, he foresees few changes in the incidence of malpractice cases once the pandemic ends. He cited a New Jersey bill signed by Governor Phil Murphy in April 2020 that provides civil and criminal immunity to frontline workers.

Even with this added protection, he emphasized that one of the best ways to deter malpractice claims is to exercise a positive bedside manner. Not only does good bedside manner help build better patient-doctor relationships, in his experience, but most malpractice complaints are rooted in a lack of adequate communication.

“People who feel comfortable with their doctor and think that the doctor cares about them don’t complain as much and don’t sue,” Schaff said. “Most of the malpractice complaints come from patients who think they aren’t being treated fairly.”

Beatrice O’Donnell, JD, partner at Duane Morris LLP, Philadelphia, PA, and a member of the firm’s COVID-19 team, said that careful documentation is an absolute necessity for physicians looking to protect themselves—even during a time when they’re receiving increased protection from state and federal regulations.

“Routine healthcare is out the window, but it’s [still] really important for doctors to take detailed histories,” O’Donnell said.

Another troublesome likelihood is that there’s now a sicker patient population, she noted. With all of the postponed elective surgeries and reduced outpatient care, it’s possible that patients will return to doctors’ offices much sicker than they were when they presented in the past. “In this scenario, diagnoses are more challenging when they come later. It puts healthcare providers in the crosshairs,” she said.

On the provider side, O’Donnell pointed to “pandemic fatigue” as a phenomenon that could cause physicians to be less careful with procedures and documentation than they would be normally.

“Everything takes five more steps because you have to put the COVID-19 protocol on top of existing protocols,” she said. But, an emphasis on staff training and rules reinforcement can minimize mistakes.

“It’s important to be transparent with your patients and with your staff. If people understand that you’re doing these things to help protect them, I think that helps you,” O’Donnell said.

Staying on top of the new normal

Physicians must be prepared to meet the legal “new normal” head-on. Fortunately, there’s plenty of good news: Doctors tend to win most malpractice cases, and now, they’re receiving an extra layer of defense in the form of increased state and federal protections.

However, any lawsuits—even the ones you win—can be costly and time-consuming, and are much better avoided.

Your best bet? Keep thorough documentation, keep your team updated, and practice the best bedside manner you can muster.