The pandemic has raised pressing questions around preventive measures, vaccines, and safe treatment, but it has also obscured one key lingering uncertainty for medical professionals: Where are all the medical malpractice claims?

A variety of factors create a cloud of uncertainty around when, if ever, we will see the claims we expected from the care provided just before the pandemic, much less claims deriving from care during the pandemic of both COVID-19 patients and non–COVID-19 patients.

Malpractice claims take time to surface

We won’t know until 2022 or later whether there will be an increase in claims related to the pandemic. When a medical error occurs, it’s not like an automobile accident. Everybody nearby knows when there’s been an automobile accident because they hear screeching tires, a loud crash, and then sirens. But when a medical error occurs, generally speaking, neither the doctor nor the patient immediately knows that something is amiss. It can take months or years for people to realize that something untoward has occurred.

Claims from medical errors that occurred before the pandemic bring additional uncertainties. In 2020, we saw fewer than expected overall claims filed from events occurring 18 to 24 months before the pandemic. In total, 20 percent fewer claims were filed than in 2019. This may have had to do with courts shutting down, people being reluctant to meet with attorneys to discuss a claim, and/or lawyers working from home. We may see these claims filed later than expected, or maybe we won’t see them at all.

But without a doubt, pandemic-related claims will be filed. The pandemic’s impact on physicians increases the risk of claims. Burnout is a major cause of medical errors, and a recent study found that out of 60 countries, U.S. health care providers showed the highest rates of burnout. We’re concerned about the stress affecting physicians’ performance—not just the physical stress of the demands put on them while treating COVID-19 patients, but all of the worry. For instance, many doctors at the start of this pandemic stayed at hotels because they didn’t want to bring the virus home to their families—if they got exposed. Those sorts of stressors from life disruptions, on top of the stress of treating COVID-19 patients and the stress of treating non–COVID-19 patients within overtaxed health care systems, contribute to the possibilities for error.

Immunity protections are not fail-safe

And while health care providers have medical liability protections during the pandemic, these protections may not prevent claims. Health care provider pandemic-related liability laws vary from state to state, and they will be tested in the courts as to whether they’re constitutional. For example, there is pending legislation in New York State that would repeal the provider protections created there at the start of the pandemic. Further, some expert witnesses will couch their statements in terms of what it takes to get around one of these statutes. Therefore, physicians do have reason for concern, even in states with strong liability protections.

The following case example, which is one of about 40 COVID-19–related claims made against our members so far, is a poster child for why these protections are necessary: A quadriplegic patient with COVID-19 had reached the point of organ failure before he reached the emergency room. There was really nothing medical science could do for him at that point, in terms of a chance at recovery. Therefore, the patient’s physician and conservator placed him in assisted living for palliative care. This was a sad but reasonable decision during a pandemic, with hospital beds needed for patients with a shot at surviving. Following that patient’s death, the physician is being sued.

Defending claims regarding treatment vs. regarding infection control

We are very confident in our ability to protect our members against claims where they are being sued over the treatment of the disease. Claims arising out of treatment are not concerning to us because there is no cure for COVID-19—one can only treat the symptoms as the virus runs its course.

On the other hand, suits harder to defend would be those that revolve around transmitting the disease because providers didn’t follow guidelines from the Centers for Disease Control and Prevention (CDC) or there wasn’t enough personal protective equipment (PPE). That’s why we stress the importance of following CDC guidelines, and why we’ve taken proactive steps to communicate with the entire medical community throughout the pandemic as part of our commitment to serve those who provide care.

Robert E. White, Jr. is chief operating officer, The Doctors Company.

Founded and led by physicians, The Doctors Company is relentlessly committed to advancing, protecting, and rewarding the practice of good medicine. The Doctors Company helps hospitals and practices of all sizes manage the complexities of today’s healthcare environment—with expert guidance, resources, and coverage—and is the only medical malpractice insurer with an advocacy program covering all 50 states and the federal level. The Doctors Company is part of TDC Group, the nation’s largest physician-owned provider of insurance and risk management solutions. TDC Group serves the full continuum of care.

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