Over the last five decades, we have witnessed three medical malpractice crises which have each led to soaring insurance premiums, an avalanche of new legal claims, and insurers calling it quits in many of the affected states. Experts have warned since last year that a fourth medical malpractice crisis was on the horizon, and this year the COVID-19 crisis made things exponentially worse.
Tech advances, however, are expected to fuel the liability crisis too as Americans can’t seem to part ways with their love for the “culture of technology” in the medical field regardless of the many legal risks doctors are being exposed to.
Looming Medical Malpractice Crisis
The previous medical malpractice crises occurred in the mid-1970s, mid-1980s, and early 2000s. All crises saw a jump in litigation, a reduction in insurance companies willing to shoulder the risks, and soaring premiums (in the early 2000s, premiums nearly doubled).
Many state legislatures tried to address these issues by capping the amount of compensation a patient could receive for non-economic damages, also known as “pain and suffering.” Before the change, juries had granted six- and seven-digit personal injury awards in some medical malpractice cases.
However, these efforts don’t seem to prevent the fourth crisis from rearing its head in the near future. According to an unpublished Milliman report in 2020, policyholders in the medical profession saw their premiums jump 74% from 2001 through 2006, saw a significant decrease through 2017, and started climbing again in 2018 and 2019 by 5.4% and 1.2%, respectively.
Experts expect the looming crisis to peak over the next 3 to 5 years. However, due to the many tort reforms, states adopted to shield doctors from liability in recent years, along with emergency legal immunity granted to some doctors over the ongoing public health crisis, injured patients will likely carry much of the financial burden of medical errors.
Improperly employed medical technologies are also expected to fuel the crisis since, in the early 2000s, 43% of medical malpractice cases were spurred by the misuse of technology advancements.
How Tech Advances Can Expose Doctors to Liability
Tech advances are supposed to keep human error to a minimum and improve diagnosis and treatment outcomes, but according to the Institute of Medicine’s sobering conclusion in a 1999 report, “all technology introduces new errors, even when its sole purpose is to prevent errors.”
Technology advances leave plenty of room for human error during both the diagnosis and treatment phases as the more advanced technology is, the more skill a doctor needs to possess for an appropriate and successful use of the said technology.
If the doctor’s yielding of the technology resulted in substandard care and caused the patient’s injuries, he or she should get ready for litigation, especially since most medical malpractice attorneys currently work on a contingency basis. Contingency fees paid to attorneys mean that there is no longer a paywall to deter injured patients from pursuing a lawsuit against their health care providers.
Some of the most common tech-related medical errors that have led to lawsuits include:
Bad medical decisions that have led to the improper use of medical hardware and/or caused preventable injuries (In McRae v. St. Michael’s Medical Center, the injured patient was granted $1,796,000 in total damages for a botched surgical procedure to her fractured leg, of which $1,000,000 was given only for her pain and suffering)
Missed diagnoses that have caused further complications in the patient or death (In Mahoney v. Podolnick, the family of a patient killed by stomach cancer sued his health care provider for failing to administer life-saving emergency treatment to the patient after a tumor had shown up on an abdominal x-ray)
Improper use of new technologies: Countless new parents have sued their obstetricians for failing to detect the clear signs of fetal distress via pulse oximetry during labor and delivery; this human error has allegedly led to poor oxygenation or asphyxiation of the child which has ultimately led to permanent brain damage in the child and a severely life-altering diagnosis of cerebral palsy.
And the list could go on…
Besides the rising costs of healthcare and the extra financial burden for injured patients caused by technology-related medical malpractice, there’s another lesser-known factor that could fuel the looming medical liability crisis: Doctors are more likely to steer clear of high-risk practices such as emergency care, OB/GYN, and neurosurgery to shield themselves from potential lawsuits.
But this means that some practice areas might soon face substantial staff shortages, which can only negatively affect patients further.
We may be at the dawn of a new medical malpractice crisis as recent insurance market conditions have shown, and the ongoing pandemic paired with rapid technological advancement can only add fuel to the fire.
As patients are asking for sleeker, faster, and more technologically advanced healthcare, physicians are caught in a race against time to master new technologies that require unusually high skill sets.
Plus, new technologies like pulse oximetry makes it easier for patients to spot medical errors and hold their doctors accountable. And since it is the doctor’s responsibility to manage all the risks posed by these new technologies, more and more physicians either lobby their representatives to put a cap on their liability or simply steer clear of high-risk practices like obstetrics to avoid liability altogether.