This article originally appeared in the May 2021 issue of Trial News.

What. A. Year. As much as has already been written about the pandemic, this piece is about how it has affected medical malpractice in Washington. Obviously, the pandemic has profoundly altered how health care is delivered. While some changes are temporary, many permanent changes will stick around to affect health care and medical malpractice claims. We have seen a significant shift to telemedicine, with resulting drawbacks and benefits. Healthcare providers’ stress level has been severely affected, and worsening stress is tied to increased medical errors. Not all news is bad, though: there have been some significant victories on the policy front, mainly in the face of resisting efforts to essentially eliminate our area of practice.

Telemedicine: How great is it?

Thanks to the pandemic, more patients are seeing their provider through telemedicine than ever before. While the technology has been around for at least a decade, it has flourished this year. This is a good thing for many people, as it has almost become a house call (but no touching) with your provider. If you have video chat capabilities, you can probably have a telemedicine visit. But telemedicine does have its limitations.

Telemedicine has existed in a limited form, mainly through hospitals, but the DSHS’s temporary relaxation of HIPAA regulations for virtual appointments has allowed it to become nearly ubiquitous.¹ Much of this technology has been relied upon by telestroke providers for some time. In a hospital setting, it allows for small, rural hospitals to have access to a neurologist without the cost of keeping one on staff. In that setting the neurologist, in her office halfway across the country, would review the stroke imaging and the patient’s vitals. Additionally, with the help of a tablet, she would also be able to perform a modified neurologic exam on the patient.

Obviously not all medical care can be provided remotely. Without certain devices physically with the patient (like a blood pressure cuff, pulse oximeter, or thermometer), important information about a patient’s vital signs will be lacking. But for routine checkups like prescription renewals and mental health counseling, telemedicine has been a boon. For many visits, patients will no longer need to carve a couple of hours out of their morning; that in and of itself is stress reducing.

The fact that a physician cannot perform a physical exam may itself result in delays in diagnosis. Certainly, the formula for negligence remains the same, but the format has changed: the standard of care violation would conceivably be based on a failure to order an in-person exam or order labs. In the recent past, these now “follow-ups” would simply be performed in the office at the visit. Case in point, one study revealed that 2/3 of malpractice claims from telemedicine were diagnosis related.² This also means our experts would be asked to testify about the standard of care for telemedicine exams.

Telemedicine has not universally increased access to health care among all populations, however. People of color, especially those over 65, appear to have significantly lower levels of telemedicine usage.³ The reasons are multifactorial and are a problematic continuance of a racial disparity in access to and quality of care across the United States.⁴

Delays in care due to COVID – a twist on “blame the patient”

Telemedicine became an avenue for Americans to access medical care from the comfort and safety of their own home (or office). There has been a corollary drop in in-person exams, including screening exams. Now a year into the pandemic, physicians are sounding the alarm of a silent pandemic of advanced disease waiting to explode.

The number of medical visits dropped significantly in 2020 when compared to the previous year.⁵ A significant number of these visits were for cancer screening (testing to identify cancer before it becomes symptomatic – and late stage). For example, at one point in 2020, colon cancer, cervical cancer, and breast cancer screenings were down 86%, 94%, and 94% respectively in year-to-year comparisons.6 The numbers recovered, but only partially. Some patients have filtered back in for screening exams or have been forced to the doctor because of developing symptoms. As a result, pandemic-induced delays in treatment are resulting in physicians discovering cancers in more advanced stages.

What is happening is that patients are delaying cancer screenings out of pandemic-related fears. It is still early to evaluate results broadly enough to generate substantial studies, but reports are rolling in that physicians are finding cancers at more advanced stages than they would under normal circumstances.

From our perspective, this sequence segues into the ever so popular “blame the patient” defense. It is reasonable to assume that we will see an uptick in claims for delays in diagnosis defended with allegations that patients’ delay in follow-up, or delays in screening, led to an advanced, perhaps incurable disease, being discovered. So, while we as practitioners encounter some form of patient delay in medical visits, this is likely going to become a factor as patients and/or survivors start to pursue medical malpractice claims for pandemic related delays in diagnosis. The calculation for the plaintiff’s contributory negligence would be whether the patient’s delay was “reasonable” in light of reasonable fears related to the pandemic. With everything behaving so strangely these days, it is unclear how juries are going to respond.

COVID stress and medical malpractice

I do not need to tell you that the pandemic has been a tremendous strain on hospitals around the country. Hospital staff are suffering from trauma and emotional problems. This year-long period of “survival mode” has left many providers exhausted, fatigued, and, for some, experiencing PTSD. Hospitals are, as a result, seeing higher than usual staff turnover, with the downstream impact of lower quality of care being provided to non-COVID patients.

A recent survey of clinicians around the country revealed that 20% reported considering leaving their job and 30% considered reducing their hours during the pandemic.⁷ Women were more likely than their male counterparts to consider leaving the workforce; this reflects the larger trend of the disproportionate impact the work-from-home shift has had on women. The sheer number of clinicians reporting willingness to leave their job is quite staggering.

Physician burnout is an ongoing issue that existed pre-pandemic. The pandemic, though, shifted the specialties that are hardest hit.⁸ Critical care physicians rank highest in the specialty at greatest risk for burnout, followed by rheumatologists and infectious disease specialists. These providers are reporting increased stress and lost sleep; many have reported making more mistakes at work. This creates a critically important line of questioning when you are deposing the defendant for a claim from the past year.

There were some efforts to attempt to counter an expected rash of medical malpractice suits in response to the pandemic.

While the question of malpractice directly related to COVID care remains one that most attorneys do not want to touch, it remains to be seen how this has affected non-ER care. I suspect that frontline COVID workers will continue to remain favored by the general public, and face time with volunteers who are injecting us with the precious COVID vaccine will occupy a special place in many peoples’ hearts. Even so, we have seen little shift overall in the impressions of focus groups regarding health care workers.

COVID and Tort–Deform

Some in Congress tried to take advantage of the pandemic to ram through dangerous “tort reform” proposals. The Safe to Work Act⁹ would have provided liability protections for businesses and healthcare providers in all but the most egregious of circumstances. For example:

• Placing all COVID-related claims under federal jurisdiction
• Requiring all medical malpractice plaintiffs to prove gross negligence or willful misconduct
• Providing liability protections from December 1, 2019 through October 1, 2024 or the end of the COVID emergency declaration
• Raising the burden of proof to a clear and convincing standard from more likely than not
• Broadly defining “coronavirus-related health care services” to encompass nearly all health care “if such provider’s decisions or activities with respect to the individual are impacted as a result of coronavirus” such as shifting of resources or staff
• Requiring a certificate of merit
• Giving defendants one motion to dismiss before any discovery was allowed
• Including a cost-shifting provision for defendants to recover damages, including attorneys’ fees and punitive damages for “meritless” claims (a term left undefined in the act)
• Allowing the attorney general to impose fines on persons or groups of persons transmitting “demands…that [are] meritless”

It is not hyperbolic to say that this would have been devastating to plaintiffs’ medical malpractice firms. Thankfully, the bill failed (thanks in no small part to lobbying efforts by AAJ). Nevertheless, it serves as a warning in that it provides a wish list of what we will continue to see in future tort “reform” attempts. We are not out of the woods yet, though – the balance of power in Congress remains nearly equal. These issues can quickly come roaring back in only a few years’ time.

The only constant is change

All of us WSAJ members have endured a year of the pandemic, making substantial changes to our practices and our lives along the way. Those of us that practice in this area like to tell ourselves that few areas of litigation are more volatile than medical malpractice.

Additionally, I think there are some long-term benefits that we can take away from the pandemic. I, for one, like taking depositions via video conference; it forces me to get my exhibits and outline organized well ahead of time. Making a subpoena duces tecum due five days before an expert’s deposition has made those depositions far more efficient. I may never go back. There is also something to be said for taking the deposition without shoes on. Am I the only one?

I do, though, miss getting the chance to meet with our clients in their homes, to meet their family, and really develop a close connection that helps to form a case. Clients have different comfort levels opening their homes these days, and that is obviously fine.

We all look forward to an end to the COVID-19 pandemic. At least we know that no matter what changes come, medicine will adapt, our practices will adapt, and we will continue our work.

Carl-Erich Kruse, EAGLE member, is an associate attorney at CMG Law (formerly known as Chemnick Moen Greenstreet) in Seattle, which limits its practice to medical malpractice cases. He is co-chair of the WSAJ Medical Negligence section.