Criminalizing Adverse Outcomes Harms Patient Safety

An opinion piece reflecting on the recent sentencing of a nurse in Tennessee highlights the harm to the doctor-patient relationship when adverse medical outcomes are up against the criminal justice system.

Dr. Stuart Weinstein, an orthopaedic surgeon from Iowa and spokesperson for the Health Coalition on Liability and Access, spoke out on behalf of this threat to patient safety in the most recent edition of Inside Medical Liability.

“Today, our justice system clearly distinguishes between “civil” and “criminal” negligence,” Dr. Weinstein explained. “To move away from this practice and obscure the critical difference between the two for unintended medical errors would negatively impact the quality of care by discouraging providers from reporting mistakes that would otherwise lead to patient safety improvements.”

It would also impact the ability of health care systems to attract and retain their workforce, “compounding the growing health professional shortage crisis.”

Research highlights that recent job interruptions present health care workers — and their patients — with an increased risk of errors.

Compounded by departures, “these workforce stresses will likely add to the challenge of performing life-saving tasks safely and effectively,” Dr. Weinstein writes. “Criminalizing adverse outcomes will accelerate these staffing shortages and hamper efforts to prevent future errors.”

If medical liability lawsuits continue to make their way to criminal courts, plaintiffs’ attorneys could spur settlements when no errors were made at all, and this precedent “would unquestionably do more harm than good.”

To read Dr. Weinstein’s commentary on criminalizing adverse outcomes, click here.

Physicians Begin to face COVID-19 Cases in Court

 As health care systems were overcome with COVID-19 cases and guidance shifted throughout the pandemic, physicians and health care providers feared a wave of liability lawsuits that are now beginning to pick up speed.

According to a Medscape review of claims, physicians working in emergency and urgent care settings are the primary targets in COVID-19-related lawsuits. Additionally, physicians who opted to practice telemedicine have also been subject to medical liability lawsuits.

In one case, a primary care physician saw a patient via telemedicine because the physical medical office was closed. The physician ordered bloodwork and an x-ray but is now the target of a liability lawsuit for “underevaluating” the patient, who ultimately tested positive for tuberculosis.

Patients who experienced delayed care, such as a postponed cancer screening, have also filed suit, leaving the work of ‘health care heroes’ as a distant memory.

Kwon Miller, manager of data and analytics for MPL Association, shared that long-term facilities and hospitals are the most common focus of COVID-19 claims, followed by emergency medicine, primary care, and ob/gyn practitioners.

As expected, federal immunity under the Public Readiness and Emergency Preparedness (PREP) Act remains weak, and other state laws or orders have been skirted.

“This year, states have started to roll back their immunity protections, and in a lot of states, there is no cap in awarding [non-economic] damages,” said Kanika Vats, a director and actuary for Aon. “There could well be a scenario where they allege wrongful death, and in a state with no cap on the pain and suffering component, if juries continue to behave the way they have been behaving, we could see aberration verdicts.”

Uncertainty remains on how significant COVID-19 lawsuits will be on our liability system, but state and federal officials must act now on reforms — ahead of the next public health crisis. 

To read more about COVID-19 lawsuits beginning to arise, click here.

Inflation and Litigation: What to Expect

As inflation persists and the possibility of an economic downturn remains on the horizon, two attorneys highlight how liability lawsuits could be affected.

Daniel Brobst and Benjamin Wilkoff from Cozen O’Connor highlighted in Bloomberg Law an analysis of how “past volatile economic conditions have created significant swings in jury awards.”

Their research found that jury pools drastically shrink during economic downturns, as jurors fear taking off work and cannot manage financially with a minimal per diem. Those who do end up being selected often hold unpleasant attitudes about their service that are linked to larger award verdicts for plaintiffs.

According to Brobst and Wilkoff, this was the case during the height of the 2008 recession and its aftermath, “as juror attitudes on companies soured amid the recession and rising unemployment.”

“While the U.S. is not presently in a recession, many economists predict it’s just around the corner,” write Brobst and Wilkoff. “If that occurs, especially following a national pandemic, one should expect a similar trend of rapidly increasing civil jury verdicts, in line with historical precedent.”

To read more about the links between economic and liability climates, click here.