By Vanessa Orr

It was already a perfect storm: the medical malpractice marketplace was hardening considerably as a result of insurers losing money not just in Florida, but in almost every state. Claims frequency was slowly rising as claims severity rose at a rapid pace; yet pricing had been kept very low because of the large amount of competition and capital in the marketplace.

Then COVID-19 appeared, making a hardening market even worse.

“In May, both Wells Fargo and Bank of America said that we’re in for a depression, and I think everyone agrees that we are at least facing a recession and very difficult economic times,” said Matt Gracey, medical malpractice insurance specialist at Danna-Gracey, the largest independent medical malpractice insurance agency in Florida. “During downturns in the economy, claims go up in frequency and severity. People sue doctors and anyone else for mistakes, and they do this more frequently when times are bad.”

While everyone is currently caught up in the country reopening, Gracey believes that people will soon turn their attention to economic woes.

“I believe the whole ‘in this together’ attitude will not last much longer,” he explained. “There are the have and have-nots, and the economic disparities are glaring; we’re already seeing societal cracks.

“Going deeper, while some people are saluting the medical profession as heroes, others are calling the whole COVID-19 issue a conspiracy and a hoax,” he continued. “At some point, people will begin to blame the healthcare system, and every scientific fact will be questioned.”

On top of societal distrust, Gracey adds that political blunders have led to a number of bad medical responses. “This is not the doctors’ fault,” he said. “They have been working with one or two hands tied behind their backs because of political issues in this pandemic.”

What Makes a Case?
With so much confusion around COVID-19, it’s hard to predict what will happen as people start to sue.

“Malpractice suits are based on whether physicians have violated the standard of care, but what is the standard of care these days?” asked Gracey, giving the example of people waiting in their cars to see the doctor, or spending time in a waiting room with three or four people, or being told not to come in at all.

“People will be questioning why their doctors didn’t tell them to go immediately to the hospital, or why they said it was okay to get an elective surgery,” he explained. “What if a person catches the virus after a facelift? The doctor can be blamed for knowing it was an elective procedure, but still opening up. The entire process has been upended.”

While legislators in Florida and at the federal level are debating a medical liability malpractice waiver that could give doctors sovereign immunity for pandemic care, there’s no telling if this relief will come.

“People are at home trying to figure out how to make money, and that means that there is much to be concerned about on the lawsuit front,” said Gracey. “Not only is the second COVID-19 wave of patients coming, but there is a current surge of patients coming back into medical practices who originally stayed away from doctors because they didn’t want to get near an office or hospital. So there’s a delayed treatment wave coming as well.”

Lessening the Threat of Lawsuits
While there may be no way to avoid the coming tide of lawsuits, taking a proactive approach to patient care can help.

“We preach to doctors incessantly that the best way to prevent lawsuits is to have really strong patient/doctor relationships,” said Gracey. “Studies have shown that doctors with these relationships are sued less, even when they make mistakes.”

Unfortunately, with 32 million unemployed, quite a number of people will be scrambling for new health care when they lose their employer-based coverage or can no longer afford COBRA.

“As they go out to get individual policies, many will find that their doctors won’t be on those networks, which means an end to those established relationships,” warned Gracey.

While doctors can hope that help will come in the form of sovereign immunity, Gracey says that they need to take matters into their own hands. “You can hope for help from the top down, but you need to start from the bottom up,” he advised. “Do what you can in your own practice.

“The key elements are great communication and great relationships with patients; these two items alone could spare many doctors from having to go through flood of lawsuits I see coming on other side of COVID. It’s Risk Management 101.”