Medical Malpractice

From COVID-19 claims to virtual healthcare, we offer our international experts’ predictions on the opportunities and challenges that the medical malpractice market may face in the coming year and beyond.

Medical Malpractice predictions
#1 Health providers will be a target for COVID-19 litigation

While NHS and independent health providers continue to contend with the pandemic, due to thousands of coronavirus related deaths and illnesses, unless governments grant a form of immunity it is inevitable that some claims will be pursued against providers and their insurers.  These may be directly related, concerning the management of a patient with the virus, or they may be indirectly related, for example in the treatment of a patient whose unrelated condition goes undiagnosed where resources are deployed dealing with COVID-19.  It is therefore critical that providers continue to document their risk assessments, their actions, and decision-making, so that these can be judged contemporaneously and not with the benefit of hindsight.

#3 Quantum of catastrophic injury claims will increase

Following a test case appeal, the value of accommodation claims will generally be higher.  In Swift v Carpenter, the Court of Appeal has laid down a new formula for valuing accommodation claims in all personal injury litigation.  This will be relevant where significantly injured claimants have had to purchase adapted or new accommodation as a result of their injuries.  The Court of Appeal has said that in most cases, a formula involving the additional capital lost minus the value of the lost reversionary interest will be applied, based on a discount rate of +5%.  This will generally result in far higher value claims, although the Court has laid open the prospect of further appeals in this area, and indicated that this formula should not be used as a straight-jacket for all cases.

#4 Increased use of individual, tailored healthcare expands risks for clinicians and suppliers

With increasing awareness and prevalence of healthcare devices, wearables and applications, individuals are using more healthcare technology to monitor their own health, bringing a raft of benefits to self-management and healthcare providers.  For example, an individual’s own monitoring of diabetes, remotely, can help alleviate the resources of a healthcare provider and allow an individual to take action earlier.  Alongside these benefits, however, lie the increased risks of cyber and data protection breaches, tech failures, and failures in communications with clinicians. These all bring risks not just for clinicians, but also for technology designers, providers and their insurers.

#5 Will COVID-19 speed up the change to virtual healthcare?

It is possible that we will not go back to the same way of delivering healthcare.  Virtual healthcare, or virtual appointments, has inevitably been increasingly used during the pandemic.  Notwithstanding the elimination of transmission, it is easy to see why:  it should be quick and efficient for patient and provider alike (certainly for routine patients or issues).  However, this modernised manner of healthcare provision may not be suitable for multi-faceted conditions, and cannot change the way some care or treatment must be delivered (eg surgery).  In addition, the way in which virtual consultations take place may result in mis-diagnoses, or ‘soft’ issues being missed in the way that they may not have been in person.

#6 US perspective: claims against senior care facilities will increase

In the wake of COVID-19, claims will exploit the negative media attention care homes in the US have received for their handling of the pandemic.  There will be more claims for poor infection control that are not necessarily COVID-related. To the extent there is no immunity protection, there will be more claims the later we get into the pandemic as the facilities will be expected to learn how to prevent or reduce the likelihood of transmission. These types of claims easily lend themselves to class actions.  Senior care facilities will also become more difficult to insure and therefore the facilities, stand alone and multi-facility groups, will be forced to self-insure in captives and risk retention groups.

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