Medical Malpractice

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From artificial intelligence to cannabis, 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 Globalisation of medical malpractice class actions to impact the UK

We expect a continued trend of large class actions to be seen in the UK, as experienced in the US, Australia and Canada with vaginal mesh implants, allergan breast implants, and Valsartan class actions to name a few.  As well as a continued focus on the use of alleged defective products, we should continue to expect heightened appetite to pursue individual clinicians in group litigation orders.  Following the Paterson litigation, in the UK in particular, focus will be drawn to the findings of Bishop Graham’s Inquiry into Paterson.  Now expected to be announced in the New Year (deferred due to the general election), the Inquiry is charged with reporting on the accountability and responsibility for the safety and quality of care in the independent sector, and the arrangements for medical indemnity cover in the private sector. 

#2 Artificial intelligence will transform the healthcare system, but will require risk management

The use of artificial intelligence (AI) is already changing how healthcare is being delivered.  AI powered health checks are helping the patients of some digital providers understand how their physical and mental health may be affected by current and past lifestyle choices.  AI is being used in medical diagnosis, particularly for pattern recognition (detecting meaningful relationships in a data set), for example in radiology and pathology.  However, when AI-enabled software takes over aspects of healthcare involving a level of “intelligent” assessment, it is important that the risks and potential liabilities are understood and managed appropriately.  While responsibility for the overall care of a patient rests with a delegating clinician, there are expected to be circumstances where the liabilities for any defects in AI technology is tested or litigated.  The suppliers of AI solutions may increasingly become targets for litigation.  It remains to be seen whether traditional tortious (Bolam) liability tests will apply or whether contractual provisions will be over-arching. We suspect a combination - primarily tortious liability between clinician and patient and contractual liability between clinician and AI provider. Covers will need to be refined to reflect this.

#4 Healthcare data will transform risk analysis

Healthcare analytics is not only informative for individual healthcare, but it will become transformational for claims, driving benefits for insurers and healthcare providers.  Predictive analysis will become a tool of choice for assessing claims exposure, and insurers will be able to use their data to predict claims outcomes and assist with pricing risk appropriately.  This will, in turn, offer a virtuous circle of risk management for healthcare providers themselves, allowing them to focus on areas of risk, and enhance/reduce their claims exposure. 

#5 A US Perspective: Cyber threats will evolve in healthcare - software risk is on the rise

Data breaches will continue to dominate the risks faced by companies in the healthcare industry in 2020.  The industry is facing a new and significant threat with the emergence of web-based software platforms utilised by established companies as well as start-ups in the drive for medical innovation.  These platforms are often designed to evaluate troves of patient data or to enable interconnectivity across systems or platforms, but adequate data security is often neglected.  Currently, companies in the global healthcare industry are unintentionally leaking sensitive information about millions of patients.  Class action lawsuits are likely to occur before the risk can be effectively mitigated.

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