A Forecast of Risk: COVID-19 Trends That Are Here to Stay

COVID-19 continues to have major impacts on patients, physicians, facilities and the broader healthcare industry, including medical professional liability. Since April 2020, in fact, there have been 1,080 COVID-19 related malpractice cases against healthcare providers in Federal and State courts. As we move forward from the pandemic, while still being mindful of its presence, the legal concerns at the heart of these lawsuits linger and continue to evolve.

For example, our research indicates that poor patient outcomes are the current key driver of COVID-related lawsuits, especially if damages are severe. However, poor outcomes are not the only concern. Specifically, we believe care delivery trends related to elective surgeries, continuity of care, staffing and telemedicine will continue to impact medical professionals over the coming years.

Pandemic Response Continues to Impact New York Physicians

MLMIC is monitoring the status of claims relating to the pandemic, plus potential fallouts that could impact New York State physicians. Looking ahead, physicians and medical practices should consider the following risks associated with how the COVID-19 pandemic has changed delivery of patient care.

• We may see an increase in claims related to failure to diagnose cancer in patients who were reluctant or unable to enter healthcare facilities for screening during COVID-19.
  
• Elective surgeries are now performed at a much higher volume than before the pandemic. This is because many patients either delayed elective surgeries or were unable to undergo them during the height of the pandemic due to restrictions that only permitted “essential” surgeries. We believe this is a temporary phenomenon that should level off following the current surge.

• More patients are going to urgent care centers and emergency departments, rather than the doctor’s office, which could increase exposure for failure to diagnose and/or follow-up.
  
• Short staffing post-COVID continues to be an issue, since there have been large numbers of retirements and professionals leaving the practice of medicine. Therefore, many facilities are understaffed and rely on NPs, PAs and even unlicensed staff. It’s important to understand that this situation increases physician liability, as does supervising these individuals. Note that permitting unlicensed staff to perform tasks that require a license, such as triage, can pose liability issues possibly subjecting physicians to Office of Professional Medical Conduct (OPMC) penalties.

• Telemedicine is here to stay. As many patients often prefer telemedicine over coming to the office for an appointment, physicians must consider the limits of telemedicine and use good judgment to decide when virtual appointments are appropriate or if good medical practice requires an in-person visit. In the event of a lawsuit, stating that a patient wanted to be seen via telemedicine will not be an appropriate defense. Be aware that there will be growing pains as practitioners and insurers find the parameters of telemedicine.

When claims arise related to COVID-19 responses, MLMIC will take an aggressive stance in defending our insureds while seeking the enforcement of federal and state liability protections.

MLMIC will continue to monitor these trends as part of our ongoing effort to protect and advocate for our policyholders. In the meantime, we also encourage our insureds to explore our existing COVID-19 resources.