As the nation enters the third year of the COVID-19 pandemic, the predicted jump in medical professional liability litigation, especially against those caring for the most vulnerable, hasn’t played out as expected.

But if providers think the worst is behind them, it’s good to remember that the risk of litigation still remains.

As of December 6, 2021, approximately 500 COVID-19-related legal complaints in total had been filed against providers in the health and medical sector.¹

There’ve been several reasons why the litigation has not exploded. In addition to statutes of limitation (typically two or three years for medical malpractice), other factors limiting complaints include the following:

• Immunity against some litigation is part of the federal Coronavirus Aid, Relief and Economic Security Act (CARES).
• Nearly 30 states have enacted protections from COVID-related malpractice and negligence lawsuits against healthcare providers.
• The backlog in legal actions generally that has grown during the pandemic has pushed lawsuits to the back burner.

Medical professionals are monitoring the situation but aren’t overly worried yet: In one survey, only 13% said they were concerned over potential malpractice litigation from COVID-19.²

The worry may be coming from another source: medical malpractice insurers. The threat of litigation is affecting the malpractice market, and not necessarily in the insureds’ favor.

Carriers didn’t typically have exclusions for this type of insurance exposure. This started to change with late 2020 renewals and extended to COVID-19 and other communicable diseases.

However, communicable encompasses the common cold, making this exclusion problematic. While some stability has returned to the market, insurers are still setting lower coverage limits, which makes securing coverage more arduous and expensive.

Uncertainty over future litigation, combined with a hard insurance market, requires providers to pay special attention to risk management. Clinical risk management is a high priority; here are some areas to focus on:

• Compile detailed clinical plans. In compiling clinical plans, providers must clearly articulate procedures and processes, including specific steps to prevent infection during patient care. In addition, the plan must include constant assessment of how care is undertaken.
• Document everything. Patient records and medical professionals’ decisions regarding the provision of care must be recorded in detail, with no room for inaccuracy in documentation.
• Review the plan through a legal lens. Once clinical plans have been laid off, it’s a best practice to have legal counsel review the plans. An attorney can identify potential problem areas and know how to address them. It’s also important to review regulatory and compliance issues.

While there hasn’t been an avalanche of malpractice lawsuits over COVID-19 care, statutes of limitations have generally not run out. In 2022, the picture will become clearer. Given that it’s possible providers are enjoying the lull before the storm, hospitals and senior care operations should use the time to prepare.

HUB International’s team is ready to help your organization respond to the opportunities and risks in the changing healthcare environment.

¹ Hunton Andrews Kurth, “COVID-19 Complaint Tracker,” accessed January 7, 2022.
² Medscape, “Medscape Malpractice Report 2021,” November 19, 2021.