Mega verdicts are the new norm
Once the exception, sky high verdicts in medical liability lawsuits are making up an increasingly larger proportion of awards in the U.S. and becoming the new norm.
This comes as Medscape reports that 2023 was a record high year in terms of excessive verdicts.
In 2023, 57 verdicts exceeded $10 million, and more than half of those were $25 million or more, according to TransRe, an international reinsurance company that tracks large verdicts.
“If we look at the 50 largest verdicts in 2023 and average them out, we have a higher monetary amount than any other year,” said Richard Henderson, senior vice president for TransRe.
While it still stands that the vast majority of liability cases are settled or dropped before trial, and the claims that do end up before a jury typically go in the physician’s favor, these lawsuits continue to require an outsized commitment by physicians who must defend themselves against meritless claims.
Without comprehensive federal medical liability reform, the shifting landscape of liability laws at the state level continues to drive spikes in lawsuits and ever-higher verdicts. To read more about the skyrocketing verdicts, click here.
Oversight lags behind implementation of AI in health care
As augmented and artificial intelligence tools become integrated into health care delivery, researchers have begun analyzing the risks and providing risk management strategies for providers to ensure in-house oversight.
A study in the New England Journal of Medicine raises questions of potential liability if AI is used in a clinical setting which ultimately results in an adverse outcome. Such concerns often lead to the practice of defensive medicine, but may also lead to reluctance in adoption – even as AI stands to improve medical outcomes and efficiencies.
The study analyzed several software product-related cases to highlight what may be on the horizon when AI tools become subject to liability lawsuits, and how their complexity often makes it difficult for plaintiffs to prove defects in software or manufacturing.
These learnings can drive a proactive stance by health care organizations, who have the upper hand and can leverage early adoption of AI tools by ensuring that liability, insurance, and risk management are outlined in AI licensing contracts.
“AI is not one technology but a heterogeneous group with varying liability risks,” the authors of the study commented. “Identifying AI tools with the greatest risk can help target risk-management interventions and clinical oversight.”
The authors of the study also offer a key recommendation to practitioners and health care organizations on this front.
“When tools have the hallmarks of high liability risk that we have identified (e.g., low opportunity to catch the error, high potential for patient harm, and unrealistic assumptions about clinician behavior), organizations should expect to allocate substantial time and resources to safety monitoring and gather considerable information from model developers and implementation teams,” the study stated.
While AI claims may push an additional burden of proof on a plaintiff, the study also urges organizations to recognize that “defense of AI cases may require different expertise” than what the defendants’ counsel is accustomed to in a traditional liability lawsuit.
To read more about how health care providers can weigh AI-related liability risk against the benefits of adoption, click here.
Venue shopping spree creates surge of liability lawsuits in Pennsylvania
Overturning rules in Pennsylvania that required liability lawsuits to be filed in the jurisdiction where they occurred has led to widespread medical lawsuit abuse across the state.
These longstanding rules required that lawsuits be filed where the treatment occurred. Now, medical liability lawsuits can be filed not only where medical treatment took place, but in any location where the health care provider operates an office, any additional hospital locations in which the physician provides care, or even where the physician lives.
Newly reported data has found that venue shopping is a form of medical lawsuit abuse that is driving up the number of claims and the cost of liability insurance.
The American Tort Reform Foundation found that through October 2023, there was a 108% increase in filings (468) when compared to the same time in 2022 (225). Liability insurance rates have been increased by specialty, ranging from 10.5% to 16.1% higher.
“There is no question the lawsuits skyrocketed. I know from personal experience that more cases involving Lancaster clients were filed in Philadelphia in 2023,” said Katherine Kravitz, a partner with Barley Snyder.
Sympathetic juries in Philadelphia are the driver behind the increase in cases there. Between 2017 to 2019, plaintiffs suing healthcare providers in Philadelphia County won at a 36% rate, compared to a 12% and 9% rate in nearby Montgomery and Lancaster counties, respectively. As of the end of 2023, the Philadelphia case calendar was already filled for years ahead.
While the state Supreme Court is set to revisit the rule later this year, physicians in far-flung parts of Pennsylvania are forced to travel to Philadelphia to defend themselves at trial, impeding access to care in their hometowns.
“Having a jury in Philadelphia decide cases that happened across the state when it has no bearing on them or their community doesn’t seem like the best way to do things,” Kravitz highlighted.
To read more about the negative impact venue shopping is having on Pennsylvania providers and patients, click here.