Medical Malpractice in the Time of COVID-19

“ One consideration that should recede for physicians in the time of COVID-19 is fear of medical malpractice. ”

Under normal circumstances, medical malpractice is a significant concern for physicians. However, one consideration that should recede for physicians in the time of COVID-19 is fear of medical malpractice.

As a result of COVID-19, hospitalists, emergency medicine physicians, critical care physicians, nurses, and many other clinicians are currently in a period that is anything but normal. Physicians are going to be forced to make decisions about which patients to admit, discharge, and send to the ICU, while facing greater resource limitations than they have ever previously encountered. Clinicians will have to decide whether to discharge a COVID-19 patient who appears clinically stable, in order to make room for another patient who desperately needs the bed, knowing that the patient who is being discharged could later become unstable.

Inevitably, some of these decisions—made under high stress, much uncertainly, and involving a novel disease—will turn out to be wrong. I have heard my colleagues discuss how, under these circumstances, they are especially concerned about making an incorrect judgment call. This concern is understandable, as physicians want to do the right thing for their patients, and they feel profound regret and stress when mistakes occur.¹

We know these concerns influence physician behavior. One well-respected estimate concluded that the annual costs of defensive medicine are $55.6 billion, accounting for 2.4 percent of all health care spending.² In a survey of physicians practicing in several specialties associated with a high liability risk in Pennsylvania, 93 percent of respondents said they engaged in defensive medicine, most commonly ordering more tests than were medically necessary.³ When hospitalists were asked in a survey what percent of health care resources are spent on defensive medicine, the mean of the responses was 37.5 percent.⁴

“ All of the clinicians CRICO insures should know that CRICO has their backs. ”

A medical malpractice claim is always a possibility. However, the lawyers, juries, and judges who make up the malpractice system will be cognizant of the trying conditions under which clinicians are practicing, in which the standard of care concerning COVID-19 is constantly evolving. Some commentators have raised the possibility of implementing temporary limitations on malpractice claims, given the current extraordinary circumstances.⁵

Regardless of whether such limitations are enacted, malpractice insurers such as CRICO exist to protect providers. CRICO was formed by the medical institutions that it insures, and the first part of its bipartite mission is to protect providers. This mission of protecting providers is all the more important now, as clinicians need to singularly focus on providing patient care amid the intense demands placed on them. All of the clinicians CRICO insures should know that CRICO has their backs.

Adam Schaffer, MD, MPH, is a Senior Clinical Analytics Specialist in the Patient Safety Department at CRICO. Dr. Schaffer also practices as an attending physician in the Hospital Medicine Unit at Brigham and Women’s Hospital in Boston, MA.

Editor’s Note
Dr. Schaffer noted that there would be formal protection and guidance to protect providers for the areas of concern written about here. On April 7, 2020, the Massachusetts Department of Health published the results of an advisory committee’s guidelines for providing acute care during a crisis. Then, on April 16, 2020, the Commonwealth of Massachusetts passed a bill in the Senate to provide liability protections for health care workers and facilities during the COVID-19 Pandemic, effective March 10, 2020.

References:

1. Waterman AD, Garbutt J, Hazel E, et al. The emotional impact of medical errors on practicing physicians in the United States and Canada. Joint Commission Journal on Quality & Patient Safety. 2007;33(8):467-476.

2. Mello MM, Chandra A, Gawande AA, Studdert DM. National costs of the medical liability system. Health Affairs. 2010;29(9):1569-1577.

3. Studdert DM, Mello MM, Sage WM, et al. Defensive medicine among high-risk specialist physicians in a volatile malpractice environment. JAMA. 2005;293(21):2609-2617.

4. Saint S, Vaughn VM, Chopra V, Fowler KE, Kachalia A. Perception of resources spent on defensive medicine and history of being sued among hospitalists: Results from a national survey. Journal of Hospital Medicine. 2018;13(1):26-29.

5. Faust JS. Make this simple change to free up hospital beds now. The Washington Post. March 15, 2020.