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Politics Are Key Factor in Policy Progress

As we approach the culmination of the biannual event known as “the most important election of our lifetime,” it is an opportune moment to assess what this election has in store with regard to the medical professional liability community.

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The MPL Association is pleased to announce a new cooperative agreement between the Association and the American Property Casualty Insurance Association to enhance both entities’ government relations efforts. Read more!


 

FEATURE

The Critical Role of Clinical Documentation in Medical Liability
10 Predictions


By Gioia Guarino, MS and Hannah Tremont, MPH


Across the US, healthcare systems are beset by limited resources and widening care gaps. Patients are frustrated by long wait times, fragmented care, inaccessible services, and extraordinary costs. These challenges force leaders to pursue new solutions, including artificial intelligence (AI) tools, expanded roles for advanced practice providers, and innovative business models.

Frontline clinicians contend with worsening physician shortages, nuclear verdicts driving up professional liability costs, and an alarming expansion of medical care deserts, especially for maternity care. For patients, these issues translate into unmet needs, the erosion of trust, and a growing sense that the system is not working for them.

Evolving technologies powered by AI offer opportunities for US healthcare organizations, while they also raise pressing questions about patient safety, privacy, and practitioner liability. Meanwhile, retail giants like CVS, reeling from unsustainable experiments in healthcare delivery, pivot to newer strategies as pharmaceutical companies expand into telehealth and direct care services. These shifts complicate efforts to provide seamless, patient-centered care, and maintain accurate, comprehensive medical records.

Each year, TDC Group predicts emerging healthcare trends over the next decade, focusing on the challenges, risks, and opportunities that shape the industry. The TDC Group report includes 10 predictions regarding how US healthcare will change over the next 10 years. The first three are highlighted here—find the full report on the TDC Group website.

Prediction 1: Nuclear Malpractice Verdicts Will Continue to Cause Ripple Effects That Threaten Physicians and Patients.

The rise in nuclear medical malpractice verdicts, highlighted by a record-breaking $412 million award in New Mexico, is an escalating crisis. Nuclear verdicts have grown in both frequency and severity over the last decade and have far-reaching implications for the US healthcare system. In 2013, there were 34 verdicts above $10 million; in 2023, there were 57 such verdicts, and more than half of those were greater than $25 million.

Nuclear verdicts are a result of social inflation, which occurs when the average cost to resolve a medical malpractice claim rises faster than general inflation. To keep up with elevated loss costs, insurers must raise rates, which increases overhead for healthcare practitioners and institutions—resulting in higher costs of healthcare for patients.

“Skyrocketing dollar amounts give an observer the idea that the pace of medical malpractice litigation is increasing, yet the opposite is true,” said Robert E. White Jr., president of The Doctors Company and TDC Group. “Claim frequency is flat to decreasing nationwide, but these spikes in nuclear verdicts are very alarming.”

Because nuclear verdicts are unpredictable, their presence influences negotiations in every allegation of malpractice. They exert upward pressure even on settlements that never go to court.

As a society, we have grown numb to large figures, whether it’s professional athletes earning tens of millions of dollars annually or lottery jackpots surpassing a billion dollars. This “number numbness,” a cognitive phenomenon observed by researchers, makes it challenging for most people to grasp the real implications of these figures.

This is compounded by the heightened emotions surrounding allegations of malpractice. Plaintiffs’ attorneys often exploit this environment using strategies like “reptile theory,” framing defendants as threats to evoke primal fear and drive jurors toward punitive, multimillion-dollar verdicts.

“These awards, intended to protect future patients, often exceed what’s necessary to make the injured party whole and increase the cost of patient care overall by promoting defensive medicine,” White added.

“The exact amount of spending increase is unknown, but many estimates would concur that defensive medicine adds at least $55 billion per year to US healthcare costs,” noted Richard Soulsby, senior vice president and chief actuary at TDC Group. “These massive verdicts primarily benefit attorneys and investors, rather than plaintiffs. Up to 40% of a settlement or award can go to the plaintiff’s attorney, while third-party litigation funders—such as hedge funds financing lawsuits in exchange for a cut of the payout—also profit.”

Jurors, driven by empathy and a desire to ensure justice, may be unaware that their decisions can enrich these external parties while inflating costs across the healthcare system.

Social inflation and rising verdicts also provide momentum to efforts by the plaintiff’s bar to overturn long-standing medical liability reforms and eliminate or significantly increase caps on damages. Tort reform measures, including caps on noneconomic damages, can help mitigate these added costs.

“In the current environment, it is essential that we continue fighting to preserve medical liability reforms, including caps on noneconomic damages,” said Elizabeth Healy, vice president of Government and Community Relations at The Doctors Company, part of TDC Group. “With the last medical liability crisis occurring in most states 20 years ago, it is more challenging than ever to help policymakers understand the importance of what is at stake as they consider laws to overturn reforms.”

Prediction 2: Healthcare Consolidation Will Continue, but Concerns Over How Consolidation Increases Costs and Cybersecurity Risks Will Push Policymakers Into Further Regulation

Healthcare consolidation is expected to persist, but mounting concerns over its impact on costs, clinical autonomy, and cybersecurity vulnerabilities are likely to prompt policymakers to implement stricter regulations. In a transition away from independent practice, approximately 77% of physicians now work in employed models, where they frequently experience diminished autonomy and constraints in the delivery of optimal clinical care.

Contrary to hope that consolidation would reduce costs through economies of scale, evidence indicates it usually drives medical charges higher. Hospital mergers and acquisitions have left nearly half of all metropolitan areas in the US with just one or two health systems controlling all inpatient care, according to a 2024 study from KFF, raising concerns about limited competition and inflated pricing without improvement in patient care.

Research from Brown University’s School of Public Health reinforces this concern. Vertical integration, such as hospitals acquiring physician practices, often raises prices without corresponding improvements in care quality. These findings have intensified attention from Congress and antitrust regulators, who see hospital consolidation as a significant driver of rising healthcare expenses, with hospital care alone accounting for a third of all health spending.

Private equity investments have further accelerated consolidation, also attracting legislative scrutiny due to instances where investor profits coincide with hospital closures, reducing community access to care. Lawmakers are increasingly critical of investor-driven decisions undermining the availability and affordability of essential services.

In addition to economic concerns, consolidation significantly heightens cybersecurity risks. Larger healthcare organizations become more appealing targets for cybercriminals, exposing critical infrastructure to attack. This was starkly demonstrated in February 2024 when Change Healthcare—a payment processing company handling nearly 40% of US medical claims annually—suffered a crippling cyberattack that disrupted operations nationwide. The incident underscored the fragility of a system increasingly concentrated among a few dominant players and the potential for cascading effects on patient safety and access to care.

“Healthcare-related organizations are notoriously attractive to cybercriminals,” explained Paul Romano, president of TDC Specialty Underwriters, part of TDC Group. “They are by nature more motivated than those of almost any other industry to avoid any stall or shutdown of their operations. With increased scrutiny from policymakers following the Change Healthcare attack, the scales might finally tip toward more constraints on consolidation.”

As concerns about rising costs, declining quality, market concentration, and security vulnerabilities mount, the push for robust oversight of healthcare consolidation is intensifying. Policymakers and stakeholders face a critical moment to balance economic efficiencies while safeguarding competition, accessibility, and the integrity of the US healthcare system.

Prediction 3: Nurse Practitioners, Physician Assistants, and Alternative Care Models Like Hospital-at-Home Programs Will be Key to Alleviating the Continuing Primary Care Crisis.

The US is facing a severe shortage of primary care physicians, projected to reach 48,000 primary care physicians by 2034. This gap is worsened by an aging population, the increasing prevalence of chronic disease, and a growing demand for primary care services. By 2036, the overall physician shortage could reach 86,000. Addressing this shortage requires shifts in how care is delivered, including expanding the roles of advanced practice providers (APPs) such as nurse practitioners (NPs) and physician assistants (PAs).

Large healthcare systems are increasingly looking to APPs to fill open practitioner roles. By 2031, the number of NPs is projected to grow by 80% relative to their 2019 total. The number of PAs will grow by 50% over the same period. The number of physicians, in contrast, will only increase approximately 5% over the next decade.

In response, universities are ramping up their pre-health programs for undergraduates, especially those for APPs. More than half of PAs surveyed by a major professional society described themselves as interested in working in a rural area, medically underserved area, or health professional shortage area. That said, like physicians, APPs face barriers to enacting such choices, including career options for spouses, as well as other practical and financial concerns.

“With our various national care shortages and gaps, we need healthcare systems and care team leaders to continue their vital work of defining roles and solidifying best practices for teamwork within a patient safety culture,” emphasized Laura Kline, regional operating officer for the Northeast region of The Doctors Company, and senior vice president of Business Development for TDC Group. “Collaboration between physicians and [APPs] can lay the foundation for continuity of care, delivering significant benefits for both patients and practitioners.”

As APPs take on growing responsibility in the evolving healthcare landscape, they will also face increasing liability risks. Employed APPs practice under malpractice insurance coverage provided by their employer or supervising physician, but that coverage often features shared limits that can be inadequate protection for an APP and may not cover key risks like nursing board investigations. As their roles expand, these practitioners will need to examine their exposure and risk and adjust coverage accordingly—and insurers must be sure this coverage is available.

At the same time, more patient care is headed to the home. Patients who are able to participate in hospital-at-home programs experience lower readmission rates and report much higher rates of satisfaction with their care.

Advocates for hospital-at-home programs can also make a strong business case in terms of preserving capacity. The largest hospital-at-home program in the country, Mass General Brigham, treats 50 to 60 patients per day in their homes in lieu of the hospital. The program treats patients experiencing COPD flareups, acute infections, and other targeted conditions. Support from organizational leaders and positive feedback from clinicians, in addition to tech partnerships, have been key to the program’s success.


 


Richard E. Anderson, MD, FACP, is the Chairman and Chief Executive Officer of The Doctors Company and TDC Group.

The TDC Group’s new report includes 10 predictions regarding how US healthcare will change over the next 10 years.

 
Read all 10 predictions for 2035.