The pandemic thoroughly disrupted healthcare delivery across the spectrum of healthcare. The effect is stunning. By mid-2020, more than 40 percent of U.S. adults had delayed medical care or avoided it entirely, including care for urgent and emergent complaints. Nearly a third of American children missed or delayed care in 2020. This encompassed everything from preventive screenings to cancer treatments to emergency department assessments for symptoms of heart attack or stroke. While many of these missed appointments will not have specific adverse outcomes, modeling predicts more than 10,000 excess deaths over the next decade from breast and colorectal cancers alone directly attributable to care delayed or missed during the pandemic. Estimates of the actual vs. expected total mortality rate in 2020 suggest hundreds of thousands of excess deaths beyond the documented toll of COVID-19 alone.
As an oncologist, I am particularly alarmed over the missed opportunities for cancer detection and care. Preventive cancer screenings in the U.S. dropped 86 percent for colon cancer and 94 percent for breast and cervical cancer following the declaration of the COVID-19 national emergency. When the American Association for Cancer Research polled patients—both women never diagnosed with cancer and women diagnosed with breast cancer—they found that around 30 percent of each group reported delays in screenings or active treatment. And indeed, oncologists are now reporting diagnosing patients at more advanced stages of their disease than would have been expected pre-pandemic.
As the nation’s largest physician-owned medical malpractice insurer, The Doctors Company has supported doctors through many crises, from natural disasters to military deployments, where external events have disrupted care. Gaps in care present risks to both patient safety and physician liability. We are committed to partnership with physicians and practices, and are leveraging insights gained through our national scope and long history to help members deal with emerging risks at the local, practice level.
Risks of Litigation
Healthcare availability has returned to pre-pandemic levels, but mitigating risks from the pandemic’s delayed care would require additional catchup appointments that we aren’t seeing.
During the first quarter of 2021, The Doctors Company received about the same number of new claims as we did in the first quarter of 2020. We know most claims are based on poor outcomes, rather than poor care. Remaining to be answered is the question whether we will see a surge in claims for delayed or missed diagnoses related to the pandemic. This might include claims alleging delayed immunization, delayed testing, undetected medical contraindications to the vaccines, lack of proper infection control procedures, or improper rationing of resources and vaccines. Finally, what about potential allegations of delayed diagnosis of new, unrelated conditions or delayed treatment of existing conditions because of disruptions in healthcare caused by COVID-19?
We ask these questions just as many of the medical liability protections passed by the majority of states during the pandemic are expiring. New York has already allowed its protections to lapse. Further, it is possible that many plaintiffs’ attorneys are waiting to file patients’ claims in hopes that medicine’s well-earned halo—the positive light shining on the medical profession because of heroic actions during the pandemic—will fade.
Mitigating Risks From Deferred, Delayed, and Disrupted Care
More Americans have died of COVID-19 than were killed in all of World War II. Comparing events by their staggering death tolls is problematic—but in this case, arguably instructive. A pandemic, like a war, doesn’t end when it ends, as disastrous spillover effects ripple through individual lives and society as a whole. We have a chance now to impede those spillover effects through strategic efforts to mitigate risks from deferred, delayed, or disrupted care.
Situations most likely to lead to litigation are those in which patients themselves are acutely aware of delays. In such cases, liability risks exist even if care was available, but the patient felt too worried about COVID-19 to be seen by a healthcare provider. Clinicians should attempt to contact such individuals. Examples include patients who communicated with the practice about things like breast lumps, rectal bleeding, or chest pain, who would be acutely aware of time passing while not seeing their physician.
We know that delays in screenings and intervention for patients with certain common chronic conditions can contribute to claims. Now, clinicians have the opportunity to identify patients whose conditions merit priority contact, such as those with cardiac conditions, hypertension and diabetes, and request they come in for screenings or checkups. Explicitly recommending that those without medical contraindications get vaccinated not only helps slow the spread of COVID-19, but may also stop a patient from claiming that they remained unvaccinated for lack of counsel from their physician. Whether or not a practice or institution is distributing vaccines, it should communicate to patients that COVID-19 vaccines are extremely safe, remarkably effective, and vital to ending the pandemic. Invite patients who have questions about vaccines to communicate their concerns.
Since risks exist even if patients did not present for care, documenting efforts to reach patients who have delayed care will reduce the likelihood of a malpractice claim.
It’s not yet clear whether there will be a surge in claims related to COVID-19, but clinicians will be well served by remaining mindful of the new liability risks created by deferred, delayed, or disrupted care.