EXECUTIVE SUMMARY
Medical malpractice lawsuits that were delayed during the pandemic are resurfacing. Risk managers should prepare.
- Courts were closed or operating slower during the pandemic.
- People were reluctant to claim malpractice when clinicians were hailed as heroes.
- Some states enacted statutes of limitations that will drive pandemic-era claims.
The COVID-19 pandemic paused the usual flow of medical malpractice lawsuits, but it appears that is ending. Hospitals and clinicians are seeing more filings, which could put unusual pressure on risk managers, defense counsel, and insurers.
The pandemic delayed lawsuits that might otherwise have been pursued at that time because some courts were completely closed. At other times, they were bogged down by COVID-19 precautions and trying to shift to working through videoconferencing, explains Abbye E. Alexander, JD, partner with Kaufman Dolowich Voluck in Orlando. Additionally, some people were less inclined to file medical malpractice claims during a time of national crisis.
“These doctors and nurses were all being hailed as heroes. That’s now subsided a little bit,” Alexander says. “Most people still think they’re heroes, but the hype surrounding that has subsided substantially. Therefore, it’s not going to be a difficult point for attorneys and plaintiffs in the malpractice realm, whereas they may have run into certain issues during the time when nobody wanted to sue doctors, and everybody wanted to hail them as heroes.”
Alexander expects to see a surge in malpractice lawsuits now that courts are open, and plaintiff attorneys are eager to make up for lost revenue during the pandemic.
There is a significant increase in the number of cases filed against nursing homes in Florida, says Christopher E. Brown, JD, partner with Kaufman Dolowich Voluck in Orlando. Much of Brown’s work involves long-term care defense.
“The reason for that is we had a period of time — over a year — in which you didn’t have families coming into these facilities. They were prevented from seeing their loved ones and they didn’t know the condition of their loved ones,” Brown says. “Because of that, they weren’t aware of some of the alleged negligence that’s taking place within those buildings. Now that you’ve got families back in seeing their loved ones, there has been an uptick in the number of suits that we’re seeing.”
Florida enacted a two-year statute of limitations for claims related to long-term care, so attorneys are rushing to file those suits after the pandemic, Brown says. Other states’ statutes of limitations also will drive claims from the pandemic period.
Telemedicine May Spur Cases
There is concern the sudden expansion of telemedicine could lead to more claims, but so far that does not seem to be happening, says Christopher J. Tellner, JD, partner with Kaufman Dolowich Voluck in Blue Bell, PA.
“A lot of that is because the plaintiffs’ bar doesn’t necessarily know how to value those cases, or how to demonstrate the causal relatedness between telemedicine and the failure to diagnose, for example, which we predict is going to be the larger of the telemedicine cases,” Tellner says.
Those telemedicine cases eventually will be filed, Alexander says. They will involve venue issues related to the patient’s location. There also will be questions of whether the provider carried the proper insurance to cover that patient, was trained for the care they provided, and whether the patient was located where they were supposed to be.
As usual, documentation will be key in telemedicine cases. Make sure any referral or recommendations to visit the ED or seek a different consultation with a specific provider was documented, along with the patient’s response.
Less Agreeable Juries?
Defendants could face juries that are more hostile than before the pandemic, says Ross Suter, Esq., senior vice president of litigation solutions at Magna Legal Services in Philadelphia.
“Hospital providers should expect a jury pool that is more anti-corporation and, specifically, large swaths of people who distrust healthcare providers — a sentiment that has grown during the pandemic,” Suter notes. “While some providers potentially benefit from the halo effect, particularly for cases that arose during the pandemic, cases prior to 2020 might not.”
The plaintiffs’ bar has controlled the playing field when it comes to damages, Suter says. Providers should be more proactive and assertive from the start, with early case assessment and expanded discovery to address alleged damages.
Identify areas of damages that are vulnerable to challenge. View damages through the lens of the jury and provide credible counter-anchors that jurors see as reasonable.
“Having prepared a convincing case on liability and damages places a defendant in a better position to mediate, settle, or try the case, if necessary,” Suter says.
Not Just COVID-19 Cases Delayed
In Tennessee, all the healthcare liability cases have been delayed — not just those alleging injury during the pandemic, says Kay Anderson, JD, an attorney with Baker Donelson in Memphis, TN. Anderson is working on a case in which the alleged negligence occurred in 2011. The plaintiff died, leaving three children who were minors at the time. Now, the children are all over the age of majority, and the trial is set for September 2023. Another of Anderson’s cases involves a 2013 incident set for trial in February 2024.
“Attorneys are now all scrambling to get old cases tried and new ones on the trial docket. The courts still attempt to spread the jurors out at least three feet from each other, which makes it quite difficult to face all of them when you speak,” Anderson explains. “Overall, the pandemic has been very hard on our cases since we cannot get to trial but do not want to settle as we strongly believe there was no negligence.”
Car wreck cases and criminal cases stayed on top of their dockets, and healthcare liability cases have been hit the hardest, Anderson says. Delays can be hard on physicians when they recredential or apply for privileges and explain why a 10-year-old case sill is pending.
Anderson advises letting the attorneys take the brunt of the stress when cases start to pile up. “Just as hospitals and physicians do not care only for one patient, there are many of us handling a significant volume of healthcare liability cases. Trying to get four or five attorneys to agree to dates for depositions and trials is equal to herding cats,” she notes. “I advise my clients to not worry, let me do the worrying, and we keep them abreast of events and developments.”
Delayed Diagnosis During Pandemic
Some healthcare providers are seeing an increase in claims of delayed diagnosis, where someone with a non-COVID-19 diagnosis contends it should have been diagnosed earlier, says Peter Kolbert, senior vice president for Healthcare Risk Advisors in New York City.
The claims note canceled appointments and limited hospital admissions during the pandemic. Patients have been diagnosed with more advanced cancers and other serious conditions, contending they should have been seen and diagnosed earlier.
Patients had been evaluated to a limited extent, some tests had been canceled or delayed due to the pandemic, and some telemedicine patients argue they should have been called in.
“We’re at the beginning of this process. Time will tell us what types of claims we will see in response to delayed care and diagnosis,” Kolbert says. “We are currently seeing some delayed claims, but it’s going to take time to see if the number is abnormal or consistent with historical trends.”
When the pandemic started, the forward momentum of existing lawsuits slowed because the courts were shuttered. There was a corresponding drop in the number of lawsuits filed. Of the lawsuits that had been filed, the discovery period was delayed, and those are now coming to fruition.
“The term I would use for that is the cycle time — how long the case went from filing to conclusion. The cycle time was extended because of the delays in the courts, but we are seeing this return to pre-COVID cycle time,” Kolbert says.
Qualified Immunity Questioned
Healthcare providers also are waiting to see if the qualified immunities provided by many states will protect them from civil liability. New York passed a qualified immunity statute, but now plaintiffs’ attorneys have been challenging the validity of that statute and saying it does not apply.
“They’re saying that when it was sunset, it was annulled as if it had never been enacted at all, which isn’t accurate. Recently, there was a court decision upholding the validity of the New York statute,” Kolbert explains.
On Oct. 7, 2022, New York’s Appellate Division, Fourth Department issued a critical decision in Antonella Ruth v. Elderwood at Amherst, et al., CA 22-00069, regarding the Emergency or Disaster Treatment Protection Act (EDTPA), which granted civil immunity to nursing homes and other healthcare providers in providing medical services in response to COVID-19. The court upheld a prior ruling that granted the defendants’ motion to dismiss on immunity grounds, Kolbert explains, holding the repeal of the EDTPA was not retroactive, and the defendants were entitled to the protections of the qualified immunity afforded medical providers.1
“We believe this ruling in support of qualified immunity in New York and elsewhere is going to be helpful in response to future claims,” Kolbert says. “We anticipate it will control and hopefully dismiss cases that claim negligence when the hospitals and providers were doing everything they could to respond to all of the challenges that COVID created and that we, the public, asked them to address to maintain public health and minimize death and illness.”
The surge in lawsuits may not be as big as some fear, Kolbert says, mainly because he thinks the public still recognizes the healthcare community was tasked with an enormous amount of work.
Lawsuits related to care during the qualified immunity period will need to show gross negligence. Kolbert believes such claims will fail.
“We are seeing higher-severity in the delayed claims and delayed diagnosis claims, but that will begin to flatten out since hospitals have opened and returned to normal,” he says. “I think we’re now going to see an array of claims concerning long COVID and the misdiagnosis of long COVID.”
Emergency medicine physicians, pulmonologists, and infectious disease physicians will be most affected by any claims arising from the pandemic period. Kolbert advises effectively communicating with physicians about long COVID.
“People are fatigued. They’re tired of talking about COVID. They’re tired of talking about and considering respiratory issues,” he says. “Nonetheless, the respiratory issues are continuing. We need to continue to remind people to exercise appropriate cautions.”
REFERENCE
- Antonella Ruth v. Elderwood at Amherst, et al., CA 22-00069. Oct. 7, 2022.
SOURCES
- Abbye E. Alexander, JD, Partner, Kaufman Dolowich Voluck, Orlando. Phone: (407) 789-0244. Email: [email protected].
- Kay Anderson, JD, Baker Donelson, Memphis, TN. Phone: (901) 577-2116. Email: [email protected].
- Christopher E. Brown, JD, Partner, Kaufman Dolowich Voluck, Orlando. Phone: (407) 904-0919. Email: [email protected].
- Peter Kolbert, Senior Vice President, Healthcare Risk Advisors, New York City. Phone: (212) 891-0700.
- Ross Suter, Esq., Senior Vice President of Litigation Solutions, Magna Legal Services, Philadelphia. Phone: (866) 624-6221. Email: [email protected].
- Christopher J. Tellner, JD, Partner, Kaufman Dolowich Voluck, Blue Bell, PA. Phone: (267) 841-5909.
The COVID-19 pandemic paused the usual flow of medical malpractice lawsuits, but it appears that is ending. Hospitals and clinicians are seeing more filings, which could put unusual pressure on risk managers, defense counsel, and insurers.
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