The COVID-19 health crisis has had a dramatic effect on some elements of the MPL claims experience, such as the nature of trials, while changing little about other features, such as the ongoing increase in the size of the average verdict. While to date the lawsuits that have been filed relating to pandemic-era care are largely being filed against long term care centers and nursing homes, medical practices must stay alert to ongoing developments in this arena. Here is our look at what you need to know about claims at this unusual moment.
While an attempt to establish immunity for COVID-19-related care at the federal level failed to pass the U.S. Senate in September, the Public Readiness and Emergency Preparedness (PREP) Act is being tested as a source of immunity in cases that are being filed against long-term care facilities for pandemic-era care. Additionally, at least 38 states have put some form of COVID-related immunity in place. This immunity will hopefully mean that the bar for plaintiffs to prove negligence for care rendered during the pandemic will be higher, reflecting the dire circumstances providers are operating within. It is too early to know whether this will contribute to the number of lawsuits being filed.
The average plaintiff’s verdict in medical malpractice cases has been growing steadily for the last half-decade. National data shows that the number of $10 million-plus medical malpractice verdicts has steadily increased since 2014, reaching a 20-year high last year.
In a year that has been anything but “predictable,” some observers have asked if the COVID-19 pandemic could upend that trend. Perhaps the outpouring of support for healthcare workers might create a “healthcare heroes” halo effect that could change jurors’ minds when considering verdict size? We’ll keep our eyes out, but for now those predictions do not seem to have come to pass, as so few trials have actually occurred during the pandemic.
Practices should expect that trials will continue in part via videoconference technology to allow remote participation of jurors and witnesses. It’s unlikely that these trials will be conducted completely virtually, and many courts are experimenting with hybrid models that incorporate both teleconference technology and socially distanced in-person proceedings.
Some experts wonder if the difficulty of holding trials and the inevitability of delays could result in greater interest in negotiating settlements. However, plaintiff’s lawyers are historically accustomed to weathering “dry spells,” and a widespread pandemic discount on settlements has not been reported thus far.
It’s also not yet known if the perception of physicians as “healthcare heroes” will affect jurors’ decisions. This effect may be offset by short memories and the social and political discord that has been exacerbated during the pandemic. While recent verdicts have shown mixed results, the long-term effect remains to be seen.
One of the factors that may be driving ever-higher verdicts is that many plaintiffs and their attorneys are being buoyed by litigation finance companies. These companies provide cash advances and only require payback if the plaintiff receives a recovery in the lawsuit. The problem: When plaintiffs (and/or their lawyers) are receiving financial assistance like this, they are less likely to agree to settle the case at a reasonable dollar amount and may be more willing to “take their chances” at trial.
Physicians should be aware that some of these companies claim to have a network of healthcare providers that will treat the plaintiff at no cost, billing the litigation company directly at negotiated rates. This type of model may increase the scope and duration of treatment, which in turn increases the dollar amount of a plaintiff’s damages claim in the lawsuit. Given these circumstances, it’s essential that lawyers defending medical malpractice cases ask for this information in discovery.
Curi’s Claims team will continue to watch these trends to better understand the malpractice claims landscape and keep our members up to date on the latest developments.