Some trends were already becoming clear as we entered the second quarter of 2021. According to Independent Agent magazine, medical malpractice insurance rates are increasing by 10%, on average. They attribute this spike in part to larger payouts for claims and growing legal defense costs.
And in New Mexico, the Associated Press reported in March the state Supreme Court upheld the Medical Malpractice Act, which set $600,000 for non-medical and non-punitive damages. The decision reversed a 2018 district court ruling that found damage caps unconstitutional.
As medical malpractice claims return to the courts, here are three types of cases legal experts expect to dominate the industry for the rest of 2021.
1. Opioid-related deaths
Over 3,000 cities, towns, Native American tribes and other groups spent years preparing for trials against the largest drug manufacturers, distributors, and pharmacies. However, the coronavirus pandemic stalled those trials, according to the Washington Post. It’s one of the largest civil cases in American history.
The plaintiffs accuse the companies of medical malpractice by flooding their communities with prescription pills and fueling the opioid epidemic. In December 2020, two federal trials were delayed: a May 2021 trial in Cleveland against pharmacy chains was moved to October, and a January 2021 trial in West Virginia was postponed without being assigned a new date.
Potential settlements include a $26 billion figure involving all the jurisdictions, Johnson & Johnson, and distributors McKesson, Cardinal Health, and Amerisource Bergen.
Meanwhile, the opioid death toll keeps climbing. More than 400,000 people have suffered drug overdose deaths over the past 20 years, Centers for Disease Control statistics show. Of those, 81,000 occurred between May 2019 and May 2020.
Some of those lost died in hospitals. According to the New Jersey Law Journal, the family of a woman who passed away following routine surgery agreed in March to a $3.35 million medical malpractice settlement. Maria Joyce Holland underwent a procedure to remove an ovarian cyst. She administered an excessive dose of an opioid drug and had to be placed on life support. Holland was 48 years old.
2. COVID-19 claimants
Though opioid malpractice cases have been on hold because of the COVID-19 pandemic, the virus itself is generating new claims. Some legal experts predict health providers will face a wave of litigation due to serious illness and deaths caused by COVID-19.
In particular, Medical Economics notes the sharp upswing of telemedicine and virtual consultations may contribute to this particular trend. It’s making physicians anxious to reduce their liability from COVID-19, even though there have been few medical malpractice cases centered around virtual visits.
To help protect businesses, some states are moving to pass legislation shielding them from COVID liability. Florida enacted such a law in March. As JD Supra reports, several plaintiffs have filed claims in the Sunshine State seeking compensation for personal injuries. Businesses are also suing insurance companies. Here are two examples:
- Relatives of family members accusing employers of exposing their loved ones to COVID and causing their deaths by failing to implement workplace safety measures to protect them
- Businesses suing insurers who challenge the business interruption claims they file because they had to temporarily close due to the pandemic
3. Medical misdiagnosis
In January, the Buffalo News reported Gerald Culhane, a cancer patient in New York, was awarded $1.95 million in a lawsuit against the Buffalo VA Medical Center.
During a doctor’s appointment in September 2013, the former Marine and Vietnam veteran stated he had a lump in his neck that had been there for three months. According to the radiologist’s report, a CT scan showed no evidence of a tumor requiring biopsy. As a result, Culhane’s primary care physician did not schedule a follow-up appointment.
About 18 months later, Culhane fretted over a growth developing on the left side of his face. He underwent another scan and a biopsy, which detected squamous cell carcinoma. Culhane began radiation treatments and IV chemotherapy ending in August 2015.
But that was not the end of his troubles. In January 2017, Culhane underwent a radical tonsillectomy and neck dissection. Later that year, he filed a medical malpractice suit against the U.S. government. His lawyers cited a “total system failure” and a lack of follow up by the VA that would have found his cancer sooner.
More cases to come
In summary, medical malpractice cases are expected to explode. The driving force is the lifting of COVID-19 pandemic restrictions and courts picking up where they left off in 2020.
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