Updated April 30, 2020: As the nation’s largest physician-owned medical malpractice insurer, we see a range of effects, thus far, from the COVID-19 pandemic on physicians, practices, and facilities. At one end of the spectrum, those on the front lines in specialties like emergency medicine, critical care, and pulmonology are working as hard as they can to take care of patients while often facing great personal danger. Hospitals with high COVID-19 counts—or expecting to have them—are creating new triage arrangements and generating field hospitals with steps like renting out blocks of hotel rooms for particular uses. It’s all hands on deck.
At the other end, those who were performing mostly routine care, elective procedures, or dental care have seen their patient volume fall to a trickle or completely cease. Some of these doctors are struggling to keep their offices open and keep their staff employed.
Within the healthcare industry, emergency measures taken during this pandemic are expected to create lasting change, at least in some areas. These areas include telehealth and scope-of-practice issues. In other areas, the future is murkier: It’s unclear whether we will see any post-pandemic change to the overall rate of medical malpractice claims, but it’s a question that bears close observation.
Telehealth: Before the pandemic, telehealth usage was growing incrementally, but it has surged in recent weeks, with support from payers and regulators. Many physicians and practice managers have been forced to master telehealth on the fly—and many have discovered that it is more manageable than they thought. With the myth somewhat disproven that telehealth is too difficult, and some payer and regulatory obstacles reduced or removed, the surge in telehealth is expected to continue as we discover what our new, post-pandemic “normal” looks like.
Scope of Practice: Before the pandemic, scope-of-practice questions were driving conversations, but now we’re seeing significant action to expand the scope of practice for advanced practice nurses, physician assistants, and the like. Some states have revised or suspended supervision requirements so that advanced practice nurses can care for patients more independently; in some places, advanced practice nurses may participate in certain routine procedures, freeing up physicians to attend to more complicated cases. Some of these changes are likely to remain in place once the current crisis passes.
Court Access: While attorneys are working remotely, the court systems largely are not operating, meaning not holding jury trials or in-person hearings. So we’re facing uncertainty about trial dates, with some jurisdictions expected to defer all civil trials to 2021. We do know that when the court systems reopen, criminal proceedings will have priority, because of the constitutional right to a speedy trial. Uncertainty about trial timing is having an effect on how we handle claims through the pandemic, even before we get to the other side.
Aside from the timing question of how courts will handle the backlog of cases post-pandemic, the extent to which discovery or fact gathering can go on right now really varies, especially when, for example, a deposition is needed from a healthcare professional—who is also needed at the hospital to take care of COVID-19 patients.
New Claims: There are also questions regarding the total number of medical malpractice claims we can expect to come out of this time. While new claim reports may be down a little bit now, there's a question as to whether there will be a spike in new claim reports, whether COVID-19-related or not—maybe some claims that were deferred will ultimately be filed later in the year. The legal landscape includes actions by some states, but not all, to provide protection to their healthcare workers and organizations from ordinary negligence claims related to care during the pandemic.
Overall, we know more about the future of the post-pandemic clinical picture than we do about the post-pandemic legal landscape. We’ll see much more care by telehealth and a wider scope of practice for many advanced practice professionals, but when it comes to the overall rate and nature of claims, we’ll have to wait and see.