Existing at the intersection of medicine, law, business, and public policy, the Medical Professional Liability (MPL) industry is experiencing negative impacts associated with several trends. Not only are verdicts rising—and becoming megaverdicts—due to social inflation, but medical professionals and healthcare institutions are increasingly confronted with threatening legal and legislative environments.
These megaverdicts gain outsized attention in the media and on social media, potentially poisoning generations of potential jurors. Although many courts were closed during the acute phase of the COVID-19 pandemic in 2020 and into 2021, once the courts reopened, record-setting MPL verdicts occurred in a variety of jurisdictions. These included a $111 million verdict in Minnesota, a $97.4 million verdict in Iowa, and a $77 million verdict in Georgia during 2022.1
With the exception of Florida, tort reforms are being watered down in a number of jurisdictions. State Supreme Courts in several states sanctioned tactics designed to undermine tort reform during 2022.2
“The biggest issues for us are inflation and claims severity,” said Janice Ginley, vice president, claims and patient safety, MIEC. “Eroding tort reform, the slow legislative response to that erosion, and our weak judiciary are all causing mayhem for the defense of claims. We also see jury pool desensitization to claims values in areas otherwise historically more conservative. Weak judges are also undermining tort reform protections, allowing marginal cases to go to trial.”
Megaverdicts
As the MPL industry emerges from the COVID-19 pandemic, more cases are being resolved, either through settlement or going to trial. Because of periodic shutdowns of discretionary procedures and court closures, many claims from the pre-pandemic era were frozen in place. That’s because without the pressure of a court date, many cases languish without resolution.
But now that the courts are open, settlements and trials are occurring, although there is still a backlog from the pandemic, especially in jurisdictions where courts were closed for a longer period of time.
There is an aspect of the pandemic that hasn’t necessarily resulted in more large verdicts, but it could explain why more of the higher settlements or verdicts are now occurring. “I liken the effect of the pandemic on claims, settlements, and trials to a sieve effect,” said David Hertzer, Jr., vice president of claims at Medical Mutual Insurance Company of Maine. “When you put
gravel through a sieve, it's the small stuff that gets through, but what's left behind are those big
nuggets, and so without litigation pressure or trial pressure, you're not forcing people to make hard decisions on those big cases. And they have languished. We've had this blip of big cases resolving now that the courts are back up and running that has really hit our indemnity payments hard. I keep assuring people here it is just a blip because we had these holdovers.”
For Jason Newton, general counsel at Curi, larger verdicts in more jurisdictions have definitely
been an issue. “We’re seeing more large verdicts happen in more places,” said Newton. “There are all kinds of things wrapped up in that, including the potential lack of reliability in what previously were thought to be more defense-friendly venues. The sheer dollar amounts in terms of where juries end up has been affected by social inflation for years, and now we have real inflation on top of that, which is making its way into plaintiffs’ life care plans.”
Newton cited what appears to be a general change in juror attitudes related to verdicts and
awards, in which there is an openness to awarding more. This is occurring at a time when large,
aberrational verdicts are at a 20-year-high. “Because jurors have the world at their fingertips with their smart phones, they are well aware of the salaries for physicians and hospitals as well as entertainers, athletes, CEOs, and celebrities, and that can’t help but influence their thinking on verdict awards.”
Ginley, agreed, saying, “If somebody who plays professional football or basketball or baseball, for example, is getting paid millions of dollars to play a game, then a jury tends to think that must be the value for somebody's general damages in a medical malpractice case. There’s a desensitization to who's actually paying those costs in a medical malpractice case.”
In the Western US jurisdictions where MIEC operates, they’ve seen social inflation operating in a variety of different contexts, Ginley added. “We tried a case last year in Alaska,” she said. “Initially, when the jurors were out deliberating, some of the first numbers they talked about were $200 million for general damages in a case where you would think those numbers would not come into play. Those were really, really ridiculous numbers but an example of where the jurors’ mindsets are when it comes to valuation. Trying to get a handle on that has been part of the challenge in today's environment.”
Weakening of Tort Reform
There’s little appetite for tort reform on the federal level, meaning action has shifted to the states. Florida enacted a sweeping tort reform bill in March, introducing a modified comparative negligence standard, decreasing the statute of limitations, enacting new standards of admissibility of medical damages, and more. Iowa established a new cap on noneconomic damages applicable to severe injuries which were previously exempted from its cap. However, these states are the exception as tort reforms enacted in other states are being explicitly weakened by legislative actions, diminished through weak judges, or evaded through plaintiff attorney strategies. “One of our biggest concerns are efforts to completely erode tort reform or
somehow get around it,” said April Johnson, vice president of Claims and Corporate
Compliance, BETA Healthcare Group. “So, while tort reform might be there, there are
different techniques that the plaintiff bar uses to try to evade it. What’s common, especially
in cases involving skilled nursing and rehabilitation facilities, are allegations of intentional understaffing in an effort to put profits before patients. We are also seeing more allegations
of intentional concealment of alleged negligence.”
Both healthcare inflation and regular inflation together are increasing costs related to MPL litigation. However, life care plans are showing runaway increases, with both Ginley and Johnson mentioning the trend in what they both characterized as outrageous plans being
presented in court.
“One issue that's really big for us right now is we're seeing just a bunch of exorbitant, excessive, unnecessary life care plans,” Johnson said. “These plans are coming in the range of $30 or $50 million for the remaining life expectancy of the individual. Current levels of high healthcare and regular inflation are being projected out through the life expectancy of the individual and that the inflation will be sustained at that rate, which of course is not reasonable to believe, but that’s what we’re seeing these days. In some cases, that $30 to $50 million is the starting demand for a resolution of a case—which is just absolutely mind blowing.”
Newton noted the trends in weakening tort reform as well. “A good example of that would be
in Pennsylvania, where venue reform has been undone,” he said. “There are a couple of state legislatures, both in Pennsylvania and in Georgia, where there are very slim majorities. That makes it difficult to gain meaningful traction in ways that could be favorable to providers.”
While many physicians and other providers believe that the judicial system will demonstrate
that they weren't negligent since medicine isn’t an exact science, the judicial system isn’t always
friendly to those views, Ginley noted. “We have a case in Idaho where the judge initially rules in our favor on a motion for summary judgment because the law and medicine were correct. In fact, the judge issued a 51-page decision for the defense. Then, following a motion for reconsideration, the judge reversed herself,” she said. “It’s just unfortunate that the judge would not stand by her original decision, but this is not uncommon in the current environment. Now
the case is moving forward. The doctor has consented because of the damages claimed, however we must try the case. The medicine is good and this doctor must be defended.
That's our job. MIEC is a mutual. Our core is to be there for doctors on their worst days.”
24-Hour Media and Social Media News Cycle
The very nature of large verdicts means that they get a great deal of attention from the media and on social media. What isn’t as frequently reported, however, is the fact that many large verdicts are overturned on appeal. In fact, one of the largest verdicts ever recorded, a $229 million verdict against Johns Hopkins Bayview Hospital in 2019, was overturned by the Maryland Court of Special Appeals in 2021.3
Little notice is also taken of the fact that MPL expenses add an estimated $56 billion to healthcare spending each year.4 In addition, research studies reveal that few cases actually get to court; of those that do go to trial, the defense prevails far more often than the plaintiff. Less than 10% of MPL lawsuits get to court; of those, approximately 80% are decided in favor of the defendant.5, 6 “The media and social media environment is one of the biggest issues I’m concerned about because they're tainting the perceptions of the juries,” said Hertzer. “There are so many articles and reports about how our hospitals aren't staffed well enough, for example, and aren't making enough money to provide patients with good care.”
While these stories represent real, legitimate issues, they can represent negative bias in reporting, he continued, because they are giving an inaccurate impression that, for example,
hospitals are always understaffed and cannot provide good care because of it. He cited a New
York Times article about negative bias in reporting that concluded that news organizations need to be more responsible in terms of ensuring that their reporting is as balanced as possible in all contexts.
“They’re also reporting the big verdicts, but they never report the defense verdicts,” Hertzer noted. “They also don’t report the miraculous care that was rendered, saving lives—only the mistakes or the bad outcomes, mistakes or not.”
Social media is a whole other problem, he continued. “Before social media, if you wanted to get something published to a national or international audience, you had to go through a real organization with a real vetting process to even have that happen. Now, social media has given a segment of the population whose opinion should never leave the four walls of their own homes an international platform to say whatever they want.”
Johnson agreed saying, “While not necessarily an issue in California MPL claims, I do think social media is a huge problem. Many times, on social media, organizations and defendants are demonized, while huge verdicts and bad outcomes are sensationalized. Rarely do you see a story about a defense verdict or an award for huge damages that gets reduced or reversed on appeal.”
Impact on Access to and Cost of Care
MPL insurance is a crucial link in ensuring access to healthcare and the reasonable cost of care. Without MPL insurance, doctors, nurses, hospitals, health systems, and other providers could not offer care; that insurance must also be affordable because otherwise spiraling costs would put care out of reach for more Americans.
Unfortunately, many Americans are already experiencing difficulty accessing care, as the prevalence of healthcare deserts increases across the country. Healthcare deserts are a growing problem in America. A GoodRx Research analysis revealed that people in 80% of US counties lack access to necessary healthcare services.7
One cause of healthcare deserts is the closure of hospitals or conversion of hospitals to a lower level of service. The Cecil G. Sheps Center for Healthcare Research at the University of North Carolina reports that 190 rural hospitals have closed or been converted since 2005.8 Rural
hospital closures are associated with a decline in overall availability of and access to healthcare providers.
“In California, at least recently, we've seen a lot of hospital closures and a lot of hospitals announcing that they are within months of bankruptcy. And they're trying to find investors or purchasers or increased governmental reimbursements to stay afloat. The problem with that is it doesn't just result in a hospital closing, it results in communities being massively damaged by this. Because of closures, you've got loss of jobs and, ultimately, lack of access to care,” said Johnson.
“This is a symptom of a bigger problem,” she continued. “Lack of tort reform, lack of control of class actions all feed into the costs of healthcare. If hospitals are having to pay more for their pharmaceuticals because of class actions, if they experience a budgetary crisis due to declining reimbursements, if they have to pay higher salaries to stay staffed, that leads to a smaller budget. It’s not sustainable.”
Hertzer agreed. “The continuing theme for me is a spiraling effect,” he said. “You’ve got staffing limits, you’ve got organizations operating in the red. You’ve got the media and social media impact on our jury pool walking into a trial, which makes it harder for us to win, which puts us
at risk for a larger verdict when we lose. And then that ultimately means that when it comes time for policy renewal, our premiums are going to be higher. Our self-insured retention may be higher. Our deductibles may be higher. And so ultimately, that puts more financial burden on
that already burdened healthcare system.”
For Ginley, costs inevitably trickle down through the healthcare system. “When we pay these high claims, we have to raise rates,” she said. “Then healthcare systems have to pass those amounts on to patients, which becomes an access issue and a cost issue. This may not be an issue in large metro areas, but it already is in rural areas. If they don't have healthcare, if they don't have an interventional cardiologist, or a maternal fetal expert there, for example, patients will not get those necessary treatments. And they will die. And it's a terrifying thing to think about. But that's really the long-term potential impact.”
References
1. “Ten of the Largest Medical Malpractice Verdicts of 2022,” JDSupra.com, Jan. 12, 2023, https://www.jdsupra.com/legalnews/ten-of-the-largest-medicalmalpractice-2980009/
2. “2022 Judicial Review: Significant Court Decisions on Medical Liability Issues,” The Doctor’s Company, Fourth Quarter 2022, https://www.thedoctors. com/the-doctors-advocate/fourth-quarter-2022/2022-judicial-review-significant-court-decisions-onmedical-liability-issues/
3. Maryland Court of Special Appeals overturns $209 million birth injury verdict against Johns
Hopkins Bayview,” The Baltimore Sun, Feb. 2, 2021, https://www.baltimoresun.com/health/bs-md-ciappeals-court-overturns-birth-injury-settlement-20210203-ke7tg6ximvetvlcugdxkrny 7pi-story.html
4. “The Anatomy of a Malpractice Lawsuit,” Aesthetic Surgery Journal, May 2023, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9954963/
5. “How Many Malpractice Lawsuits Go to Trial?” RaynesLaw.com, https://rayneslaw.com/what-percentage-of-medical-malpractice-cases-go-to-trial/
6. “Medscape Malpractice Report 2021,” Medscape
7. “Mapping Healthcare Deserts: 80% of the Country Lacks Adequate Access to Healthcare,”
GoodRx.com, Sept. 9, 2021, https://www.goodrx.com/healthcare-access/research/healthcaredeserts-80-percent-of-country-lacks-adequatehealthcare-access
8. “190 Rural Hospital Closures and Conversions since January 2005,” The Cecil G. Sheps Center for Health Services Research, University of North Carolina, April 8, 2023, https://www.shepscenter.unc.edu/programs-projects/rural-health/ruralhospital-closures/