As the world prepares for a global pandemic, the Medical Professional Liability (MPL) industry prepares for its own Category 5 claims storm. Now, nearly 17 months have passed, and the dark clouds are still covering, but the expected incident has not happened. However, although we have the best radar, no one can predict the future.
“Although we may not have seen the surge in claims that some people expected, it is too early to say that the danger is over,” said Stephanie Sheps, vice president of claims. .
According to Sheps, what we can do is analyze current trends and the impact of factors including legal exemptions that will contribute to potential results.
As of May 2021, the United States has recorded millions of positive COVID-19 cases, resulting in more than 500,000 deaths. As more and more people think that many of these deaths may be preventable, the specter of litigation follows. It is estimated that more than 10,000 lawsuits have been filed to date, including lawsuits against prisons, hospitals, long-term care facilities, medical service providers, airlines, cruise lines, and municipalities.
Although it is estimated that only a small portion of these lawsuits are related to health and medicine, the MPL cases that have been filed need to be viewed from the perspective of federal and state exemptions.
At the federal level, the “Public Preparedness and Emergency Preparedness (PREP) Act” provides for exemption from liability when people who have worked hard to fight a pandemic through clear countermeasures file a claim. As states have been relatively slow in enacting exemption laws, early claims related to COVID-19 rely on the PREP Act for protection. In order to take advantage of the PREP Act, the defense team tried to transfer it to the Federal Court. Although some courts allow cases to be transferred to and removed from federal courts under the PREP Act, many (if not most) federal judges tend to send cases back to state courts to enforce state immunity, if any.
“As the litigation progresses, it is expected that the plaintiff’s lawyers will defend Covid-19 and pandemic-related complaints in ways that circumvent state and federal laws, such as through allegations of intentional or deliberate actions,” Sheps pointed out. “This may affect liability because intentional and deliberate actions are standard policy exclusions. Even if these allegations are unfounded, coverage may be affected when a request is made in this way.”
After the initial decline, the frequency of new claims has returned to pre-pandemic levels and has remained flat compared to previous years. The unfavorable or unexpected results that formed the basis of the malfeasance lawsuit may also not be obvious. Considering that most MPL claims involve diagnostic delays, these delays may be equal to (if not greater than) the delayed diagnosis experienced in the pre-pandemic environment.
In addition, although routine examinations, elective surgery and screening procedures are extremely limited, this may bring short-term benefits, but this is unlikely to last. With the resumption of selective procedures and regular face-to-face visits, providers and hospitals not only face the risks associated with managing the backlog, they also face managing risks within the scope of the strict COVID-19 agreement.
Compliance with these agreements puts providers at a higher risk of burnout, which is the main cause of medical errors. Recent studies have shown that health care providers in the United States exhibit some of the highest burnout rates. The physical and psychological stress of treating patients during a pandemic can affect the provider’s performance and results.
Finally, remember the potential risks that may result from the dramatic increase in the use of telemedicine services. Although the focus of healthcare is commendable, it remains to be seen whether the unexpected shift to virtual healthcare will have any adverse effects. These are just some of the issues that lead to uncertainty in future results and claims.
As these clouds of uncertainty have not yet dissipated, Coverys will continue to pay close attention to the incident and lead the industry in risk mitigation and management, analysis, claim sensitivity and litigation strategies. Even from the most optimistic point of view, we believe that the impact of this epidemic may last for several years.
To learn more about how claims data can help you reduce your risk, please fill out the form below and download
Coverys is the marketing name of the Medical Professional Mutual Insurance Company (MPMIC) and its subsidiaries. For information about MPMIC and its subsidiaries, please visit our website www.coverys.com. Products may not be available in all locations.
