AS THE THIRD anniversary of covid rolls around, how has the pandemic affected malpractice claims?
To find out, we spoke with Peter Kolbert, JD, senior vice president for claim and litigation services for Healthcare Risk Advisors, a part of the TDC Group. (That organization includes The Doctors Company.) Across the TDC Group, Mr. Kolbert is coordinating all claims arising from covid.
What impact did the pandemic have on claims?
During the first months of the pandemic—March 2020 until that September or October—we saw the number of lawsuits drop. Toward the end of that year, claim numbers normalized back to their historical levels. I expected them to jump higher than normal as a result of covid, but that really didn’t happen.
“During covid, the states asked health care to do more with less, and the quid pro quo was qualified immunity.”
Peter Kolbert, JD
Healthcare Risk Advisors
Instead, going into 2022, we started to see two types of claims. One type was related to covid itself: the treatment of covid, its diagnosis, the failure to treat. The number of these suits crept up but they have since stabilized, and I think they will trend down as we get further away from the pandemic. With those claims, we are leveraging the immunities that state governments extended.
The second type of claim we’re seeing is around delays in diagnosing other conditions when those delays were or are attributable to covid.
You mentioned qualified immunity around diagnosing and treating covid. I understand that not all states have granted such immunity to health care facilities and personnel.
We’re seeing these immunities asserted in many places across the country, and they have been upheld in a few court cases.
Each state has its own decision to make, but I think it’s in the interest of courts to uphold these immunities. During covid, the states asked health care to do more with less, and the quid pro quo was qualified immunity. I’m sure we’ll see challenges in some states where the facts of a specific case may fall outside the scope of the immunity given. But when the facts fall within the scope, I think immunities will be upheld.
Talk more about the delayed diagnosis claims for conditions other than covid.
We’re seeing these in part around closures: A doctor’s office closed during the pandemic, so a screening procedure was put off. In these cases, there are disputes as to what complaints patients made and when and whether a more expeditious evaluation was indicated or wanted. We’re also seeing claims that findings from an earlier visit should have been a clarion call that something was more emergent, but it was not treated as such.
These claims are related to delays in diagnosing cancers, and we’re urging our clients to have a ready historical library of how their practice pivoted during the pandemic, how they changed and adjusted, and to keep a record of all that.
Many facilities and practitioners actually saw only urgent or covid patients and, at least for a period of time, went fully virtual for everyone else. We are asking people to keep records of when they went virtual, what vendors they used to do that and what kind of documentation they maintained.
Are you seeing lawsuits related to virtual health?
We are. Telehealth companies have always been subject to a fair amount of litigation, but that’s now the case for brick-and-mortar facilities that made a big shift to virtual care.
We’re seeing claims around a failure to escalate a virtual visit to an in-person one and the failure to escalate a virtual visit to an emergency room referral. In any litigation, there are different positions and disputes around what was said and the urgency with which it was communicated. We’re seeing assertions that, “I reached out, I had something that was urgent and you deemed it routine.”
It’s going to become more of a concern now as virtual health continues to be engrained in health care. I think virtual health is going to change health care, and it’s going to change litigation.
Which specialties are being hit the hardest with delayed diagnosis and failure to escalate claims?
Primary care physicians and internists are for several types of cancer and for other conditions where there was a failure to refer from virtual health. We’re also talking about gastroenterologists for colon cancer and gynecologists for breast cancer.
Hospitals have been hard-hit by staffing shortages, and many hospitals still have closed beds and patients boarded in the ED because of not enough staff. Do you think such shortages will lead to lawsuits?
I do, and I’ve been concerned about more lawsuits alleging shortstaffing because of all the media attention paid to nursing shortages during the pandemic. During a nursing strike at the beginning of the year in January here in New York, the state nurses association put out a lot of literature about nursing shortages and how those have had an adverse impact on patient care.
I think that will translate into existing lawsuits expanding their claims and to new lawsuits that have yet to be filed that make claims about shortstaffing. Nurse staffing has long been an issue in lawsuits against long term care facilities, and I think it will become a focus of some claims in connection with hospitals, hospitalists and other hospital services
Are you seeing claims about long covid?
We haven’t seen a significant number of claims yet, but I think they will be coming.
Part of the concern is that clinicians may diagnose long covid without ruling out other conditions. Physicians need to make sure they follow up with patients and that long covid isn’t a catch-all.
My concern at the moment is with primary care and ED physicians. Say a patient comes in with amorphous conditions and a history of covid when in fact what the patient has isn’t long covid but cancer.
Phyllis Maguire is Executive Editor of Today’s Hospitalist.
