COVID-19: The Impact on the Malpractice Market & Claim Litigation 2021
(Edited from Aegis’ “Malpractice Insights” podcast by Jennifer Wiggins, 1/5/2022)
Since the spring of 2020, as the world braced itself for the unknowns of a global pandemic, the medical professional liability market has been holding its breath to see how COVID-19 will affect healthcare liability in America. Shortages of PPE, inadequate testing capabilities and overrun hospital emergency rooms painted a frightening picture for all of us.
So now we’re two years in, and the COVID storm is still looming above the insurance industry. What have we been seeing as it relates to COVID malpractice claims? Here’s what we know now.
Few Health-related Claims, Lawsuits So Far
Short answer–very little. We just haven’t seen the surge of malpractice cases that some anticipated, but due to the long-tail nature of the malpractice insurance market, it may take another two to three years to experience the potential impact. (By long tail, we mean that it can take several years for malpractice cases to develop in a normal market, so with the pandemic, it could be delayed even further.)
As of December 2021, the US has documented millions of COVID-19 positive cases, resulting in hundreds of thousands of deaths. With the increasing perception that these deaths were preventable, comes the threat of litigation.
To date, it has been estimated that more than 10,000 COVID-related lawsuits have been filed against airlines, municipalities, prisons, hospitals and healthcare providers, though only a small percentage of these are actually estimated to be h-ealth and medicine-related filings. The total number of COVID claims affecting the physician malpractice market has been relatively small, up until now.
In 2020, the malpractice insurance market saw 20% fewer claims filed than in 2019. There could be a variety of reasons for this, including the courts being shut down, no elective surgeries for a period of time, and an overall reduction in elective procedures. It’s also possible that potential claimants were just reluctant to meet with attorneys during the pandemic. In general, everything slowed down in 2020. We may see these claims filed later than expected, or we may not see them at all. But it’s still too early to tell if we’ve dodged a bullet, or if the worst is yet to come.
The initial wave of COVID-related malpractice claims is focused on long-term care facilities and nursing homes, but claims against physicians are starting to trickle in, as well. Negligence, misdiagnosis, delayed diagnosis or delayed treatment, as well as issues with understaffing have been central to many of the cases that have been filed up to this point. The results of these claims will be significantly influenced by federal and state immunity for physicians.
Physician Immunity
Available immunity varies significantly from state to state. Some states offer very little immunity and others have comprehensive immunity programs in place. If immunity is in place, plaintiff attorneys will have to prove gross negligence in order to circumvent it, so I think it’s fair to say that we’ll be seeing some very creative claims being filed, as attorneys look for ways to get around the protections put in place for physicians. As a result, these pandemic-era claims are likely to become increasingly complex and much more expensive than traditional medical malpractice cases.
Physicians have been caring for COVID-19 patients while risking their own health and the health of their families, often with inadequate personal protective equipment. Treatment options for COVID-19 are still few and unproven and the virus has an unpredictable course, and unexpected deaths are still common.
One can only hope that when these cases finally have their day in court, jurors will remember what it was like in the worst days and immunities will be upheld to protect healthcare providers nationwide.
While we may not have seen the onslaught of claims some expected at the start of the pandemic, it is too early to say that the storm has passed. After an initial dip in claim activity, claim frequency in 2021 has reverted to pre-pandemic levels. And in addition to the backlog of older cases, COVID-related cases, and run-of-the-mill malpractice negligence claims are back on the court dockets to be heard.
Potential Telehealth Risks?
It will also be interesting to see if anything comes of the dramatic spike in the use of telehealth during the pandemic. While the healthcare industry’s quick pivot has been impressive, the long-term liability impact is still to be seen. For example, did practices have the necessary follow-up mechanisms in place when they went LIVE with their virtual care? Were protocols established and followed with respect to referrals and documentation? What about licensing? These are just a few of the unanswered questions that contribute to the uncertainty of future claims.
Regarding Rates
Overall, what are we seeing in the malpractice market from a rate perspective?
Unfortunately, even though claim frequency has dipped, we are starting to see small premium increases from carriers nationwide. Many malpractice insurers have started raising premiums in response to their deteriorating underwriting results, lower loss reserve margins and lower returns on investment. In simple terms, this just means that malpractice carriers are beginning to take a little bit of a hit on claim payouts and they’re starting to adjust their rates in order to position themselves for the future.
The majority of states are only seeing rate increases of 5-10%, but some states are seeing increases of up to 20%.
So what does this mean for you?
If you’re not already working with a good agent, find one. A knowledgeable malpractice insurance agent can keep an eye on the market for you and help you shop around to find other coverage options, if needed. The next few years will be significant for the medical professional liability market as we see what happens with physician immunities and the overall claim activity across the country.
All News Is Locums
Medicus Launches “Fulfil,” a Technology Platform and Community for Physician and Advanced Practice Recruiters
(Edited from PRWeb, 12/17/2021)
Medicus Healthcare Solutions today announced the launch of “Fulfil,” a technology platform and community for physician and advanced practice recruiters.
Fulfil leverages industry-leading recruitment technology and aggregates it into one, easy-to-use crowdsourcing platform. Designed to connect a recruiter’s provider network to any one of Medicus’ open jobs, Fulfil has been exclusively developed for physician and advanced practice provider recruiters.
“Fulfil is an opportunity for physician and advanced practice recruiters to create their own schedules and write their own paychecks while connecting critical resources to open job opportunities, Medicus Healthcare Solutions CEO Robert Dickey said. “Given the tight talent market within healthcare–most especially within physician and advanced practice staffing–and the appetite for more remote recruiting opportunities, Fulfil is an important tool to help drive more connections within the healthcare staffing space.”
After registering on Fulfil, recruiters can view active job openings in a personalized portal, submit candidates for open jobs, and qualify for compensation based on submittals and placements. The Fulfil crowdsourcing model accounts for both locum tenens and permanent placement providers.
“Fulfil is a groundbreaking platform for physician and advanced practice staffing, in terms of leveraging innovative technology and expanding our technology roadmap,” Medicus Healthcare Solutions Chief Information Officer Thomas McLain said. “Launching it now, during a time of such incredible need within healthcare, feels essential. We see Fulfil as an important tool to help solve the supply-and-demand imbalance within physician and advanced practice staffing.”
With more than 13 years of healthcare staffing experience, Medicus Delivery VP Courtney Gould will oversee the new crowdsourcing platform, in addition to overseeing Medicus’ government and permanent placement divisions.
Recruiters can register on Fulfil by going to “Join the Community.”
5 Growth Opportunities for Doctors
(Edited from article by Olivia Loguidice, Physicians Weekly, 12/23/2021; original article by Weatherby Healthcare, 11/19/2021)
When looking for ways to advance your medical career, it can often be beneficial to explore new opportunities for career growth and development. Fortunately, there are numerous opportunities available that physicians can pursue to expand their horizons or use to challenge themselves. A recent article from Weatherby Healthcare outlined five such opportunities that medical professionals could use to grow their careers:
1.Volunteering at a Free Clinic
Many free clinics around the United States rely on experienced medical volunteers to provide care to those without insurance. In exchange, you can receive a rewarding experience you can put on your CV, or simply use to gain new insight into the medical world. To find a free or charitable clinic in your area, you can visit the National Association of Free & Charitable Clinics website.
2. Going on a Medical Mission
Individuals in a wide range of locations across the world need medical attention. Volunteers can travel to places where obtaining quality care is difficult and provide aid to ill patients. By doing so, you can gain a new perspective, be a part of a global community, and gain additional expertise you may not otherwise acquire.
MedicalMissions.org is one organization that helps connect healthcare volunteers with mission-centered organizations around the world that need them. You can find missions by your specialty, starting date, and country.
3. Joining a Committee
Serving on a committee is an excellent way to further develop your career because it allows new and valuable connections to be made. Joining a committee demonstrates your willingness to benefit the community, which can make a strong impression on others. These committees can be at healthcare institutions, medical societies, government organizations, or at the community level. If you are interested in joining a committee at a physicians’ association, you can generally find information about such appointments on their websites.
4. Earning Another Certification or Certificate
It is never too late to change a field of work if you feel discontented with your career. Working towards achieving another certification can be the perfect way to gain career gratification. Although studying for another certification requires a large commitment, it may also prove to be a fulfilling venture. Certification and certificate programs are plentiful. One opportunity you can consider if you love writing and sharing your medical expertise is the American Medical Writers Association Essential Skills Certificate Program.
5. Take on a Locum Tenens
Undertaking locum tenens allows you to try something new, work in a different environment, and learn new skills, all of which will promote greater workplace satisfaction. Additionally, healthcare providers who work in these positions tend to have greater flexibility with their schedules, enabling them to pursue other ventures, such as some of the other opportunities included in this list of career growth opportunities.
By partaking in these opportunities, you will be able to broaden your horizons, experiment with new opportunities, and challenge yourself to become better, resulting in professional growth and development.
10th Circuit Affirms Dismissal of Locum Tenens’ Discrimination Claims Because Physician Was Not a Hospital Employee
(Edited from article by Jessica M. Marsh for The National Law Review, 12/15/2021)
Title VII prohibits discrimination at the workplace based on race, color, sex and national origin. But, only “employees” can bring claims under Title VII, as the law does not protect independent contractors. The Tenth Circuit (covering Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah) was asked to determine whether a locum tenens physician was an employee of a Kansas hospital. The court determined that he was an independent contractor, and not an employee, and affirmed the dismissal of his Title VII claims.
In Benaissa v. Salina Reg’l Health Ctr., Nos. 20-3236 & 21-3015 (10th Cir. Dec. 2, 2021), the hospital contracted with a third-party vendor to provide locum tenens physicians. The vendor assigned Dr. Benaissa to provide orthopedic surgical services to the hospital. Dr. Benaissa, an Arab Muslim male, performed these services for just under a year (the hospital gave 30 days’ written notice to the vendor that it no longer wanted Dr. Benaissa’s services, consistent with the vendor contract). The doctor sued the hospital, alleging race, religion and national origin discrimination under Title VII.
Applying a multi-factor “hybrid test” to determine if the doctor was an employee of the hospital, the court noted the doctor “was a highly skilled, experienced, board-certified orthopedic surgeon who was licensed in 11 states.”
The most critical fact for the court was that he “agree[d] that he had complete autonomy in determining what work needed to be done for his patients” because this “inform[ed] the hybrid test’s primary concern with the employer’s right to control the means and manner of the worker’s performance.” (Citation omitted).
The court rejected the doctor’s argument in support of employee status that the hospital converted his privileges from locum tenens privileges “to permanent status,” concluding that “the circumstances of [t]his case [do not] warrant deviating from the principle that having staff privileges at a hospital is not sufficient to confer employee status on a physician.” Because the doctor was an independent contractor, the court affirmed the summary judgment in favor of the hospital.
Jackson Lewis P.C. © 2022
The Healthcare Staffing Story
Scott Beck of CHG Healthcare: 5 Things You Should Do When Experiencing Work Burnout
(Edited from Authority Magazine, 12/12/2021)
Millions of Americans are returning to work after being home during the pandemic. While this has been exciting for many, some are feeling burned out by their work. What do you do if you are feeling burned out by your work? How do you reverse it? How can you “get your mojo back?” What can employers do to help staff combat burnout?
For an interview series called “Beating Burnout: 5 Things You Should Do If You Are Experiencing Work Burnout,” Authority Magazine talked with CHG Healthcare CEO Scott Beck.
Beck’s Definition of “Burnout?”
“At its root, burnout is physical and emotional exhaustion brought on by the job. This often manifests as a lack of compassion and care for yourself, your job and, in the case of healthcare providers, your patients.”
He described “balance” as the opposite of burnout: “The term ‘work/life balance’’ gets thrown around a lot but it’s a true thing. If you have good work/life balance as a physician, you are going to enjoy your career and have much better patient interactions…Healthcare is naturally a high-stress environment; you are often dealing with people’s lives, which is not something to be taken lightly. The key is for each provider to find the right balance for them.”
Beck identified the main causes of burnout as overwork, work-related stress, and lack of engagement with your organization.
“A few years ago, we surveyed physicians asking them what makes them happy in their jobs,” Beck said. “We also asked them what makes them unhappy,,,The survey found the number one reason was a lack of control.”
What can one do if they feel burned out by work? How does one reverse it?
Beck’s “5 Things” list about how locum tenens can help follows.
1. Focus entirely on patient care.
Locum tenens sole purpose is to care for patients; they don’t go to staff meetings or perform administrative tasks.
2. Work when, how and where you want.
For physicians, finding vacation time can be hard. There are holidays to cover and nights to be worked. Meanwhile, locum physicians can control the days, weeks or months they want to work.
3. Get out of office politics.
Locum clinicians are temporary and don’t have to deal with office politics.
4. Experience working in a different setting.
Many locum physicians find that working in different settings shows them new practices, while allowing them to share their expertise with colleagues.
5. Travel – experience other parts of the country.
Whether it’s rural Wyoming or somewhere more exotic (like Hawaii or Alaska), there are many places to see and things to do.
What can employers do to help reverse staff burnout?
“This is a great question because burnout is often placed squarely on the person suffering from it, rather than the conditions that may have brought it on,” Beck noted.
“First, employers need to recognize what’s going on with their physicians and other providers. This seems simple but it’s crazy how often this is overlooked. Employers need to talk to their employees about their work…
“Give them the tools and resources to address the issues causing burnout and stop it. This may be creating a ‘physician well-being committee’ or providing a budget for scribes to help alleviate some of the administrative burdens. I’m also aware of some hospitals’ designating hospital space for meditation or rest zones—places providers can escape to when they need a mental break.”
Regarding the need to raise awareness of what’s expected of employees and the related mental health repercussions, Beck said, “The first step is recognizing that we all can benefit from mental wellness. Employers need to focus on their employees’ mental health.”
6 Predictions for the Future Healthcare Workforce
(Edited from article by Kelly Gooch, Becker’s Hospital Review, 12/17/2021)
From shortages to job growth, here are six predictions made in 2021 regarding the future healthcare workforce, reported by Becker’s Hospital Review.
- Healthcare employment is projected to grow 16% from 2020 to 2030, according to the latest estimates from the US Bureau of Labor Statistics.
- The bureau predicts that healthcare will add about 2.6 million new jobs by 2030, primarily because of “an aging population, leading to greater demand for healthcare services.”
- The need for lower-wage healthcare occupations, such as medical assistants, home health aides and nursing assistants, will grow to about 10.7 million over the next five years, according to Mercer’s “2021 External Healthcare Labor Market Analysis.”
- Mercer’s analysis also found that New York and California will have the largest shortages of lower-wage healthcare workers, each state projected to fall short by 500,000 by 2026.
- The US could face a shortage of 37,800 to 124,000 physicians by 2034, according to new data released June 11 from the Association of American Medical Colleges.
- The Association of American Medical Colleges also accounted for the potential influence of physician retirement in its physician shortage projections. More than two of five active physicians will be older than 65 in the next decade.
6 Stats on the US Nurse Practitioner Workforce
(Edited from article by Kelly Gooch, Becker’s Hospital Review, 1/6//2022)
Nurse practitioners play an integral role in providing healthcare and work in various settings, including hospitals, physician offices and clinics.
Below are six stats about the U.S. nurse practitioner workforce.
1. The American Association of Nurse Practitioners estimates there were more than 325,000 licensed nurse practitioners in the US as of December 2020.
2. Overall employment of nurse anesthetists, nurse midwives and nurse practitioners is projected to grow 45% by 2030, significantly faster than the average for all occupations, according to the Bureau of Labor Statistics.
3. Based on national bureau data as of May 2020, the mean annual wage for nurse practitioners was $114,510, with California offering the highest mean annual wage: $145,970.
4. There are 24 states—including New Hampshire, Massachusetts, Vermont, Minnesota, Hawaii and Connecticut—that offer patients full and direct access to nurse practitioners, according to the AANP.
5. An AANP survey found that 61% of nurse practitioners had treated or were treating COVID-19 patients in June 2020, and 58% reported they were testing patients for the coronavirus at their practices.
6. Nurse practitioners replaced physicians at the top of Merritt Hawkins’ list of most recruited providers. The finding comes from the search and consulting firm’s “2021 Review of Physician and Advanced Practitioner Recruiting Incentives” report.
Tools to Try/News to Use
The 5 Best Malpractice Insurance Companies of 2022
(Edited from article by Dawn Allcot, theBalance.com, updated 3/8/2021)
Best Overall: The Doctors Company
Runner-Up, Best Overall: MedPro Group
Best for Nurses: Berxi
Best for Therapists and Social Workers: Health Care Providers Service Organization
Best for Dentists: The Professional Protector Plan
Medical Liability Monitor Annual Rate Survey Available to Buy
(Edited from Medical Liability Monitor’s “Rate Survey”)
Since 1991, the Medical Liability Monitor Annual Rate Survey has provided a continuing overview of the changing rates physicians pay for medical malpractice insurance. We offer a state-by-state, county-by-county report based on responses from major writers of medical malpractice insurance for physicians.
We ask for manual rates for specific mature, claims-made specialties with limits of $1 million/$3 million—by far the most common limits. These are the rates reported unless otherwise noted. To reflect the wide range of rates charged, we report on three specialties: Internal Medicine, General Surgery and Obstetrics/Gynecology.
We ask survey participants to provide data on all the states where they actively market to physicians. We only report rates for companies that maintain filed and approved rates within a given state.
The Medical Liability Monitor Annual Rate Survey is consistently cited by the US General Accounting Office, Department of Health & Human Services, the Congressional Budget Office, and numerous newspapers and trade journals. It is regularly used to influence legislation in Congress and state legislatures, as well. Our readership considers this exclusive survey an invaluable resource, referring to its information throughout the year.
Visit our SUBSCRIBE NOW page to purchase or call 312-944-7900.
How ‘Bout This?
Six Tips for Your Employee Cell Phone Policy
(Edited from article by Paul Edwards, Logan Lutton; Physicians Practice,1/5/2021)
A smartphone can be a distraction to staff members and also a potential HIPAA violation waiting to happen. Here are tips to avoid that at your practice.
Do you tend to keep your cell phone in your pocket (when it’s not in your hand) throughout the workday? Do your employees do the same? And how often do you see them texting or tapping away when they’re supposed to be working?
Here are some points to consider when rethinking your employee cell phone policy.
- What Fits Your Practice?
- What Laws Apply?
- Don’t Overregulate Cell Phone Usage on Breaks.
- Know Your HIPAA Responsibilities.
- What Related Technology or Device-Related Policies Will You Need?
- How Will You Enforce Your Policies?
Staffing-Related Snippets
Number of Workers Quitting Reaches Record 4.5 Million In November 2021
(Edited from SIA Daily News, 1/4/2022)
The number of US workers quitting their jobs rose to 4.5 million in November, reaching a record high, the US Bureau of Labor Statistics reported today. Meanwhile, the quits rate rose to 3.0%, matching a high set in September.
Industries seeing the largest increases in quits were “accommodation and food services,” which rose by 159,000, and “healthcare and social assistance,” where quits rose by 52,000.
More Companies Are Turning to Older Workers in Tight Labor Market (Time)
(Edited from SIA Daily News, 12/20/2021)
Some companies are relying on older workers as hiring becomes more difficult, Time reported. “Whatever business you are in, if you want to do it best, you need to have the best talent you can get. How foolish to turn your back on top talent just because they had a birthday or have grey in their hair,” Ken Dychtwald, CEO of the consulting firm Age Wave and author of What Retirees Want: A Holistic View of Life’s Third Age, told Time.
