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More than six months after the Covid-19 public health emergency ended, healthcare leaders continue to sift through the aftermath of the pandemic and its lasting effects on the US healthcare system.
But while some impacts of the viral outbreak—like staffing shortages and the embrace of new telehealth opportunities—rose to the forefront of public health circles almost immediately, industry experts caution that others could take “months or years” to surface, according to the American College of Cardiology. One of those consequences, for example, is the potential fallout that pandemic-related liability law changes, including immunity provisions, may have had on medical malpractice insurance and claims.
Michelle Mello, a professor of law and health policy at Stanford University, told Healthcare Brew that because lawsuits often take about three to four years to work through the legal system, “it’s hard to know what’s going on in the [malpractice] industry.” However, she said she doesn’t “have any reason to think that Covid itself was a particular source of claims.”
“The major issue was just whether the various immunities were going to be a shield for providers who are rendering countermeasure-related care, as I would have expected them to be,” Mello said. “But I just don’t have any information on what has happened, and I don’t think anybody else in the industry will.”
American Medical Association (AMA) spokesperson Robert Mills noted in an email that his organization is also “unaware of any reliable post-pandemic data gathered in the last five months to inform a discussion on the medical liability landscape since the pandemic declaration lifted in May 2023.”
Still, Peter Kolbert, SVP for claim and litigation services at risk management service provider Healthcare Risk Advisors, told the Patient Safety & Quality Healthcare podcast in June that the number of malpractice claims related to Covid patient diagnosis and care were “somewhat underwhelming” and appear to have largely “leveled off.” But he said lawsuits tangentially related to Covid—primarily claims pertaining to delayed in-person care and missed diagnoses or treatment and diagnosis of long Covid—have started to emerge.
“There are a number of claims in both of those camps. It’s not a huge number,” he said on the podcast.
With many of the claims filed as part of the “early wave” of Covid-related lawsuits dismissed in court, Kolbert added that he expects the “lion’s share” of the remaining ones to meet a similar fate.
What we do know: About a third (31%) of physicians reported being sued for malpractice during their careers, according to an April AMA analysis.
Doctors who practiced longer were more likely to be exposed to such claims, the AMA report found. As of 2022, almost half of providers over age 54 reported being sued for malpractice, compared to less than 10% of physicians under age 40.
Obstetricians/gynecologists (62%) and general surgeons (59%) were also more likely to be sued than other specialties, according to the analysis. Allergists/immunologists (7%) and hematologists/oncologists (8%) reportedly had the lowest risk of a malpractice suit.
Meanwhile, physicians identifying as men were more likely to face malpractice liability risk than their women-identifying counterparts: About 37% percent of men doctors reporting being previously sued compared to approximately 24% of women physicians.
Coverage cost: Medical liability premiums rose substantially between 2019 and 2022 after five years of relatively stable year-over-year increases, according to the AMA analysis. The percentage increases—which hit double digits in 15 states in 2022—have made it harder for physicians to afford malpractice coverage, the AMA noted.
About a third of physicians spend more than $20,000 annually on malpractice premiums, according to a November Medscape report.
Although some of the premium increases occurred during the Covid-19 pandemic, the AMA analysis concluded that the public health crisis isn’t the main reason why.
“The effects of the Covid-19 pandemic on the medical professional liability market has been largely inconsequential, and expectations are low for future influx in Covid-related claims,” per an April statement from the AMA.