August 2020, Volume XXXIV, Number 5

cover story One

Professional liability in a pandemic

Risk management concerns

his is not an easy time to be a doctor. To care for patients, we must wear N-95 masks, welder’s helmets, gowns, and several sets of gloves—and for the first few months of the pandemic, we didn’t have enough. As a result, surgeries, biopsies, mammograms, and other critical health care procedures and consults were delayed. Heart attacks, strokes, and cancer have persisted, but have fallen under the shadow of COVID-19. The physician and patient experience is far from optimal. ICU capacity is always at risk. The research on treatment for this disease is in its infancy. Drugs such as hydroxychloroquine were touted as cures, but then proved to be disappointing. Remdesivir has been approved by the FDA with promising but minimal data and is already in short supply. Even more vexing is the lack of family support in the clinics and hospitals. The virus has separated our most vulnerable patients—those least likely to provide a clear medical history—from their families and strongest advocates, leaving physicians without crucial information that could lead to a more accurate diagnosis. Telemedicine, the golden child of the pandemic, will ultimately benefit all of us, but it is difficult to fully evaluate a patient when they don’t have the right online equipment and are unable to focus the camera for a decent exam.

These challenges are unprecedented. Without malpractice protections, this time is ripe for litigation. The Health Affairs blog reported in May that several claims of medical negligence had already been filed for not prescribing hydroxychloroquine and for delays in responding to patients’ needs because of the time it took to put on personal protective equipment (PPE). This is not an easy time to be a doctor, but it will be even worse if Minnesota does not follow the lead of states like New York, Kansas, and Iowa to protect our hospitals and physicians from unfair medical malpractice litigation.

Before COVID-19 hit

Prior to the pandemic, malpractice was ramping up. Malpractice cases are measured both on frequency, the number of cases filed; and severity, the size of the settlement. In most of the country, both frequency and severity have been increasing over the past two years. In 2018, the largest medical malpractice case was awarded $190 million against a Maryland OB-GYN. Not to be outdone, 2019 saw an even larger judgement of $229 million. This increase in the severity of jury awards has led Lloyd’s of London, the premier insurance marketplace, to disincentivize insurance companies from providing insurance for medical malpractice.

Several claims of medical negligence had already been filed for not prescribing hydroxychloroquine.

Although many groups and hospitals are self-insured, a second form of insurance, called re-insurance, is required to help cover large losses. Due to these increasingly large settlements, this is becoming more expensive and difficult to obtain, ultimately raising physicians’ malpractice insurance rates. Minnesota is no exception. Over the past few years, we have had numerous $6–8 million settlements, as well as multiple $20 million+ settlements—and the trial bar is taking notice. Top plaintiff lawyers from throughout the country are flying into Minnesota to try cases in hopes of high settlements. In a recent Health Affairs review, Minnesota’s medical malpractice protections were given a “D” grade, beating out only six other U.S. states.

Current examples

It may seem that hospitals and physicians are riding a wave of good will from the public. But remember, lawsuits are often filed several years after the encounter, and memories are short when the patient outcome is heartbreaking. Furthermore, we rely on patient relationships for both diagnoses and compliance with treatment. Currently, many visits are relegated to telemedicine, where relationships are harder to foster. When visits are in-person, the physician is behind a shield, mask, goggles, gown, and gloves, making them literally unrecognizable.

Two years from now, how many lawsuits will there be for delayed diagnoses of cancer, cellulitis, or heart failure due to the current inability to do a simple exam? How many suits will be filed due to delayed surgery that allowed the progression of a disease that may have been suspected prior to the surgery but not confirmed? Even a skin biopsy was considered “non-essential” surgery when Gov. Tim Walz banned such procedures last spring. When the state allowed for this non-essential procedure to be reinstated, there was a three-month back-up in procedures.

And what about the physician who encouraged a patient to come in for an in-person visit, only to have the appointment delayed by the 5–8 day turnaround in COVID testing, during which time the disease advanced? The protocols for in-person visits and procedures change monthly, if not weekly, and it will be hard to pinpoint in hindsight where we were in this crisis at the time the suit is eventually filed.

Get involved

Physicians need to take action as soon as possible to remedy this situation while we have public understanding. On March 24, 2020, U.S. Secretary of Health and Human Services Alex Azar issued a letter asking all state governors to provide civil immunity from medical liability for health care workers treating COVID-19. Complete immunity has not come to fruition in most states, but malpractice protections have been put in place in over half of the country. Most importantly, these protections have frequently covered all care rendered during the pandemic, not just care given to patients with COVID-19.

Frustratingly, no legislation has been introduced in Minnesota. Iowa’s recent malpractice reform law offers a good framework for future legislation in this state. Five key aspects of Iowa’s law:

Actual medical expenses. The plaintiff can only sue for medical expenses actually paid. When patients receive a bill, it is often significantly discounted by their insurance. In other words, a physician may send a bill for $250, but only receive the negotiated insurance rate of $120. This law would allow the plaintiff to be reimbursed only for the negotiated rate that was actually paid.

Catching COVID-19. This part of the law sets a high burden of proof if arguing that COVID-19 was contracted in a hospital or clinic, as opposed to another setting.

Minnesota’s medical malpractice protections were given a “D” grade

Prescribing/not prescribing medications. The Iowa law protects physicians’ ability to prescribe or not prescribe medications based on their clinical judgement. At the beginning of the pandemic, many of us were asked to prescribe hydroxychloroquine with an azithromycin chaser. We now know that was dangerous, but at the time, there were many complaints lodged with our organizations for our failure to provide these medications. Remdesivir is currently in short supply; Iowa’s law protects ICU docs who can’t give it because they don’t have it.

Delayed diagnosis. The law protects physicians from liability for any injury or death alleged to have been caused by a cancellation, delay, or denial of care resulting from a governmental order, directive, guidance, or policy that was part of the state’s response to COVID-19.

“Reckless or willful misconduct.” During the pandemic, in order for malpractice to occur, there must be proof of “reckless or willful misconduct.” Although this standard will not prevent lawsuits, it is a much harder standard to prove. If you remove the wrong organ during surgery, you are not protected, but if you have a rare but known complication of surgery, this is a difficult standard to overcome.

In addition to the protections offered in Iowa’s law, I would argue that we should include protections for diagnoses delivered through telemedicine during the pandemic, as this was implemented before full-scale studies on safety and efficacy could be performed.

Across the country

Malpractice reform has been gaining national traction. For example, the Good Samaritan Act was broadened to protect any physicians who volunteered, without pay, to treat patients with COVID-19. Although important, this does not help those of us who were concurrently working in our own communities.

More recently, the Coronavirus Provider Protection Act (H.R.7059) was introduced by Representatives Phil Roe, MD (R-TN), and Lou Correa (D-CA). This act is much narrower than the Iowa law, but does offer protection from delayed/missed diagnoses due to the public health emergency, as well as offering the standard of gross negligence, which is similar to the “reckless or willful misconduct” standard. If passed, these protections would be in place during the pandemic and for a limited period afterward.

Closing thoughts

Now is the time to argue for reform. As physicians, we have stepped up to the plate. We put on our PPE, we use telemedicine, we advocate to the best of our abilities that each of our patients’ health issues are “essential,” and we ultimately take care of patients at great personal risk to ourselves and our families. Throughout this, we have been furloughed, laid off, or had our pay cut significantly. This is not an easy time to be a doctor. But we are “essential workers,” and we are proud to serve our communities.

However, the cases tried for delayed procedures, inadequate informed consent, and missed diagnoses over telemedicine will all be tried in court three to four years from now. Of course, we will all remember the pandemic, but time will bring a clarity to our actions that we don’t have now. Malpractice cases will be tried with information we do not have yet. Each physician goes to work under unusual and challenging circumstances. We all feel overwhelmed. But take the time to both call and email your legislators. Then ask your partners, co-workers, family, and friends to do the same. There is power in numbers. Legislators will notice. Now may not be an easy time to be a doctor, but if we advocate for our profession, we may not have to relive it in court three years from now.

Carolyn McClain, MD, is an emergency physician working in St. Louis Park and Hutchinson. She is on the Board of Directors of the Minnesota Medical Association and is currently performing a fellowship with the Medical Professional Liability Association in Washington, D.C.

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Carolyn McClain, MD, is an emergency physician working in St. Louis Park and Hutchinson. She is on the Board of Directors of the Minnesota Medical Association and is currently performing a fellowship with the Medical Professional Liability Association in Washington, D.C.