Malpractice claims from the COVID-19 pandemic [PODCAST]

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“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.”

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

He shares his story and discusses his KevinMD article, “Malpractice claims from the COVID-19 pandemic: more questions than answers.”

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Hosted by Kevin Pho, MD, The Podcast by KevinMD shares the stories of the many who intersect with our health care system but are rarely heard from.

Transcript

Kevin Pho: Hi, and welcome to the show, where we share the stories of the many who intersect with our health care system but are rarely heard from. My name is Kevin Pho, founder and editor of KevinMD. Today on the show, we have Bob White. He is chief operating officer of The Doctors Company, which is the nation’s largest physician-owned medical malpractice insurer. He wrote the KevinMD article “Malpractice claims from the COVID-19 pandemic: more questions than answers.” Bob, welcome to the show.

Robert E. White: Thank you, Kevin. Good morning. Happy to be here.

Kevin Pho: So we’ll get into your article in a little bit, but first off, can you share your story and journey to where you are today?

Robert E. White: Well, I started in this business in 1967, and at that time, doctors paid a few hundred dollars a year for malpractice insurance, and that was the case up to 1975. 1975 was the first year that actuaries told insurance companies that they could not guarantee the rates they were charging physicians today would be enough to pay for tomorrow’s claims. And so a whole new cottage industry began of doctor-owned insurance companies, and they were designed to eliminate the crisis of availability and affordability for physicians, because their premiums went overnight from a few hundred dollars a year to thousands of dollars a year, if they could find coverage.

So doctor-owned companies were created, and I transitioned from working for commercial carriers prior to 1975 to working exclusively for doctor-owned insurers, or insurers that originated as doctor-owned, after 1975. For the first 32 years of my career, I focused on claims handling. I was either a claims handler, a supervisor or manager, or vice president of claims, and in my career, I have handled or supervised the handling of over 50,000 medical malpractice cases. About 20 years ago, I transitioned into general management and worked my way into the position I’m in today, where I oversee the day-to-day operations of a company that insures over 91,000 physicians, writes a billion dollars a year in premium, and has 6.3 billion dollars of assets.

Kevin Pho: Now, when you say The Doctors Company is doctor-owned, tell me exactly what that means. And what does that mean to the individual clinician?

Robert E. White: Well, it’s an important differentiation. We’re owned by our members. When you buy a policy from us, you’re not just a policyholder, you’re an owner of The Doctors Company. And that’s an important distinction, because it allows a member to take advantage of the unique affinity of interest it has with its insurer, which means everything we do, and how we do it, is geared to our member policyholder.

And we have unique programs that recognize the value of membership, not only in terms of putting extra dollars in our members’ pockets through our Tribute program and other profit-sharing-type mechanisms we have, like dividends, but in how we approach the entire resolution of the claim when it gets into that process. It’s all geared toward the interest of not just protecting your assets, which is what everyone does when they buy insurance, but protecting your professional reputation, because we understand better than anyone that, because a claims payment gets reported to the National Practitioner Data Bank, it follows that physician around for the rest of their career. So we take that responsibility extremely seriously.

Kevin Pho: All right, so let’s transition now into the KevinMD article that you wrote. I know that the COVID-19 pandemic, over the last year and a half or so, has had a lot of changes in this industry. Your article is titled “Malpractice claims from the COVID-19 pandemic: more questions than answers.” Now, for those who didn’t get a chance to read that article, can you just walk my audience through it and share the story of why you decided to write it?

Robert E. White: Sure, Kevin. When we wrote the article, we were getting lots of questions about what was happening with claims from the pandemic. People who observe our industry expected a tidal wave of claims. What happened is not the nature of malpractice, it’s the nature of malpractice claims. They’re not like automobile accidents. When an automobile accident happens, there’s screeching tires, a loud crash, and sirens, and everybody in a six-block radius knows something bad has happened to someone. With a malpractice claim, more often than not, neither the doctor nor the patient knows anything untoward has occurred. It sometimes takes days, weeks, months, or even years before someone comes to the realization that a claim has occurred.

And that’s because the overwhelming majority of claims that we see are from failures or delays in the diagnosis that a patient comes into the health care delivery system seeking care for. And with those claims, the largest number we see, it’s a doctor involved in trying to work through a difficult diagnosis, a difficult treatment plan with a patient, finding the right recipe for success in that patient’s treatment, and then realizing, probably once they get a request for medical records, or find out that the patient has been to another doctor and had something else diagnosed, that there’s a problem in the case. And that doesn’t happen right away. That’s not to say that there aren’t catastrophic claims that occur where everyone knows immediately that something bad has happened to a patient, but those claims are few and far between. With the vast majority of claims, no one realizes anything bad has happened when it occurs.

And it’s that nature, that slow-evolving nature, that means we won’t know until 2022 or 2023 whether we’re going to see a tidal wave of claims, as many people have predicted. In fact, what happened was really unusual. In 2020, we experienced an actual downturn in the number of claims against physicians. We knew that working from home, for everyone, including plaintiff’s attorneys and defense attorneys, would cause a downturn in legal activity involving doctors. But we know from other statistics that we monitor that the legal profession had pretty much recovered from a serious downturn in March, April, and May to almost normal activity by September of last year. And so we expected to see the number of claims pop up around that time, to start to look like it did prior to the pandemic.

That didn’t happen. So for the entire calendar year 2020, we experienced 20 percent fewer claims against doctors than we had the previous year. And that has nothing to do with the pandemic, other than working from home, because the claims that normally would be reported to us in 2020 happened in 2017, 2018, and 2019. So that was an unusual thing that occurred.

The other thing we’re concerned about is the stress the pandemic created for physicians, whether you treated COVID patients or not. There was stress involved in the practice of medicine across the board, because if you didn’t have the physical and mental strain of treating COVID patients, you worried about whether your practice was going to survive the downturn in activity that was accompanied by the discontinuance of elective procedures and people not wanting to see doctors, which happened in 2020. So the whole profession was under stress, whether you treated COVID patients or not. We already knew that physician burnout, which is a major issue in medical professional liability cases, a cause of medical professional liability cases, was already an issue. And the combined aspects of physician burnout, coupled with the stress created by the pandemic, give us concern about the level or number of cases we’re going to see going forward. And that’s the reason why we wrote the article.

The jury’s still out about whether we’re going to see that tidal wave of cases. I’m optimistic that we won’t see them. We go on in the article to discuss how immunities, either state or federal, are a positive thing we’ll use in the defense of physicians, but they’ll be tested in court. Some are being repealed, like in New York, where the governor’s executive order was repealed by the legislature, so there are no more immunities going forward in New York for COVID. And we also have to deal with plaintiff’s experts, other physicians who twist the language of their criticism of the medical care to get around the immunity, because there are exceptions in the immunities for either intentional acts or gross negligence. And so by couching their criticism in terms of it being gross negligence, for example, to have done this or not done that, they can get around the immunities.

And so, in spite of all that, we say in the article, we’re confident of our ability to defend our physicians when the claim is about the care and treatment of COVID-19. We’re less confident about our ability to defend a physician who didn’t follow CDC guidelines or other governmental guidelines, or who didn’t have PPE, for example, available. Those will be more troubling. But the good news is, from all the signs we’re seeing, at least as far as physicians are concerned, maybe not so much for long-term care facilities or hospitals, we don’t expect to see a tidal wave of litigation against physicians.

Kevin Pho: Well, it goes without saying that the practice of medicine has fundamentally changed during the pandemic. Just from my primary care setting, we had virtual visits, we had decreased screening, for instance, for elective procedures, and there’s a potential delay when it comes to diagnoses of cancer. Now, I know that you don’t have the claims data for this past year, but just give some examples of what type of cases you anticipate seeing as a direct result of the pandemic. Can you share a story or a potential example?

Robert E. White: Oh, sure. I can share a couple with you quickly. Doctors are going to be sued for the decisions they make. We actually are defending a suit now where a patient who was a quadriplegic prior to the pandemic comes into the hospital. He’s got a urinary tract infection, he has sepsis, and he’s already in multi-organ, multisystem organ failure when he arrives at the emergency room. The physician and the conservator of his estate, the guardian of the estate, make the decision that there’s no medical care that can save the individual involved here. So they put him in hospice, and he dies a week later. And the survivors, the family of the deceased, who were not the guardian, are now suing the physician, after sensationalizing his death by arguing that they put him in a nursing home to starve to death, five days after he was seen in the hospital.

They’re going to be sued for making those tough decisions about where to direct the resources. And we’re very confident we’re going to win that case, but unfortunately for the physician, they have to go through the lawsuit until we get to what I believe will be a very successful resolution of the case on his behalf.

Another case: A patient is making a claim, it’s not a lawsuit yet, that the doctor wouldn’t treat him because he wouldn’t wear a mask. He claimed to have a disability that meant he couldn’t wear a mask, and so he’s making a claim against that doctor for abandonment, for refusing to treat him. Again, that was a decision a doctor made not just to protect himself and his staff, but the other patients that are in the office at the same time. And those are the kinds of claims we are actually seeing at this point.

Kevin Pho: Now, you mentioned that there were some state immunities when it comes to malpractice. I was wondering if you could articulate, in general, what are some of the protections that physicians can expect from these immunity laws, especially during the height of the pandemic?

Robert E. White: Well, they can be used to argue that there’s no cause of action. In other words, the case should be dismissed. In this particular state, Florida, let’s say, it wasn’t gross negligence, it wasn’t an intentional act. If it was the treatment of COVID-19, they have no cause of action. That means we would file a motion, once the suit is served, to get it dismissed, because there’s no cause of action for that. Short of an intentional act or gross negligence, they don’t have a cause of action.

And some states, like Florida, have gone one step further. In Florida, you have a four-year statute of limitations, normally, on a medical professional liability claim. Well, the state of Florida says if you’re going to bring a COVID case, you have to bring it within one year of the date of occurrence. So they’ve shortened up the statute of limitations. There are lots of little details, depending upon the state, where they’ve enhanced the ability to deal with the litigious aspect of COVID and make it essentially a non-issue for physicians in the state of Florida.

Kevin Pho: During the height of the pandemic, there was, of course, an issue with a lack of resources, specifically ventilators, PPE, and ICU beds. Now, if a physician had to make a decision that forced their hand because of a lack of resources or ICU beds, is that physician liable?

Robert E. White: You can sue for anything in this country. That’s one of the unfortunate truths that we all have to live with. I don’t think they’ll be liable, as long as the decisions they made were reasonable based on the circumstances. We believe we’re going to be able to successfully defend that physician. Remember, there’s a halo around the practice of medicine and the people who practice it that has existed for a long time, but it’s never shined brighter than it shines today. And what we have to do in a case like you’re talking about is just remind everybody on that jury what it was like back then for health care providers. And as long as we have a health care provider who exercised reasonable judgment under the circumstances, we’re going to be able to defend them.

One of the unfortunate truths I’ve learned in this business is that justice is a process, not an outcome. And all the courts care about, at the end of the day, is that both sides had the equal opportunity to plead their case, and at the end of it, they let the audience, who, in this case, is a jury, vote on who did the best job of arguing their position. It doesn’t matter that the outcome was technically correct from a medical perspective, where if you presented it to a room full of internal medicine practitioners, the majority agree there’s no negligence here. All our system cares about is that everybody had the equal opportunity to present their argument.

Kevin Pho: We’re talking to Bob White. He is the chief operating officer of The Doctors Company, which is the nation’s largest physician-owned medical malpractice insurer. He wrote the KevinMD article “Malpractice claims from the COVID-19 pandemic: more questions than answers.” Bob, as you mentioned before, you’ve been involved with the medical liability industry for decades now. From a physician standpoint, what would you say are some of the biggest misconceptions about medical malpractice that you would like to clear up?

Robert E. White: Well, people don’t realize that when we charge a premium, we’re driving the car by looking in the rearview mirror. We’re looking at past claims frequency and past claim severity and trying to determine what the charge should be for this year. So when we charge a rate, I tell people, “It’s never right, OK? It’s either going to be too high or too low, and it’s only a moment in time where it’s exactly spot on, OK?”

And so it’s difficult for us, when people start asking us questions about why my rate is so high, to get them to understand the process by which we make rates. It is highly subjective. There are arguments you can make. And if the truth be told, the rate’s never right. It’s either too high or too low, and we’re coming out of a period where rates have been too low. In 2014, the loss metrics started to shoot up, but premiums didn’t start moving up until 2019. So increased losses have been building up for the last five years, and we have to catch the rate up. So as we sit here today, rates are probably too low.

Kevin Pho: And if you were to give one single tip to physicians on how they can protect themselves against future lawsuits, what would the most powerful tip be?

Robert E. White: The thing they don’t like to hear is that it’s all about communication with the patient and documenting your involvement with the patient. And I tell physicians, when you sense a patient is uncomfortable with the outcome, is having trouble accepting the outcome, that’s the time you should increase your communication with them and spend more time in the chart on what you’re conversing about. Increase the documentation, increase the communication, because if a lawsuit ever comes, that will come back and pay dividends to you in your defense.

Kevin Pho: And my final question: What’s your take-home message that you want to leave with the KevinMD audience?

Robert E. White: That we’re very optimistic about our ability to defend the profession against claims coming out of COVID-19. And while it’s been difficult, and will continue to be difficult, we think, from a litigation perspective, you have nothing to worry about.

Kevin Pho: Bob, thank you so much for sharing your time and insight, and thanks again for being on the show.

Robert E. White: Thank you for having me, Kevin. Have a good day.

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