HPS Legal Alert: SHOULD WE EXPECT A MEDICAL MALPRACTICE LITIGATION SURGE IN 2021?
COVID-19 is Complicating Things: Likely Trends in Medical Malpractice
We hear daily about the public health and economic impacts of the Covid-19 pandemic. The news focuses first on the deaths that this horrible disease has caused. Second, the focus is naturally on the sweeping unemployment that the disease has caused and speculation on what the long term impact will be. These are undoubtedly troubling times. What do we think about the impact of Covid-19 on medical malpractice litigation? There are several trends likely to evolve into a new normal for medical malpractice lawyers.
First, because medical malpractice cases require expert witnesses and they often reside in cities where major hospitals and tertiary care centers are located, there was a lot of travel for depositions and conferences. This travel took the lawyers from Boston to New York to Los Angeles to San Francisco and more. It’s our view that because those very same depositions and conferences have been conducted via video conference for several months now that this will be the new normal in the medical malpractice litigation space. The amount of travel will be reduced significantly and, consequently, the cost of litigating these cases will drop and the billable hours available to defense attorneys will as well.
Second, those of us who practice regularly in the medical malpractice litigation space know that cases rarely settle until a trial date has been assigned and the insurance companies know that they’re either going to have to pay up in settlement or face a reckoning in the courtroom. Without trial dates that pressure cannot be brought to bear on the insurance companies who insure health care providers. How exactly this will alter case resolution strategies within particular insurance companies is still an open question. However, three possibilities seem most likely:
- One, the companies will realize that they don’t have to pay and they’ll keep their money as long as they can;
- Two, companies may believe that because without trials there will be great delays that plaintiffs will accept less money and attempt to resolve the cases for some number of cents on the dollar;
- Third, the impact of the pandemic on the health care delivery system itself has been unique. The providers have been focusing on Covid-19 patients and their emergencies while routine health care and serious, but not emergent conditions, have gone unmanaged. That probably means that there is a fair amount of medical malpractice being committed, albeit unrelated to Covid-19. This could represent a significant uptick in new cases sometime in late 2021 or early 2022.
We here at HPS have been monitoring the Covid-19 pandemic and its implications for our practice from the very start. We’ve implemented all of the necessary technology to conduct video conferences with just about anybody at any time for any reason. We’ve continued to notice cases for trial, albeit with the knowledge that the cases likely won’t go to trial. And, we’re even beginning to see some cases that arise out of neglect due to office closures, refusals to perform elective procedures, etc. What we will continue to tell the community, whether Covid-19 related or not, is be your own advocate in your healthcare routines and if you feel that you’ve suffered a loss or experienced a bad outcome due to medical negligence, call the attorneys at Haliczer Pettis & Schwamm. We can help.
The Inevitable Workplace: COVID-19 and Workers’ Comp
by Michael M. Riedhammer, Esq
THE NEWS IS OUT: employees across Florida are being called back to the physical locations of their employment. As this happens, the cautious and vigilant employer will have put safeguards in place with the intent of preventing any transmission of disease. But it seems inevitable that some employees are going to be diagnosed with COVID-19 in the coming weeks and months. It thus seems likely that there will even be instances of multiple diagnoses from the same employment location. There will be questions and concerns from both employee and employer alike when that happens.
The employee who tests positive for COVID-19 after returning to a physical work location will no doubt feel that the two are related. That employee, with perhaps no other options, may look to workers’ compensation to cover medical expenses and lost wages. However, it is an uphill battle indeed, a “Herculean task” as recently described by the 1st DCA, to prove that an exposure or occupational disease arose out of work. It would seem that the employer and the insurance company will be quick to deny these claims given the unlikely chance of the injured employee prevailing.
The cautious and vigilant employer however must be ever more cautious and vigilant in issuing such a denial. If not worded correctly, the denial may be just what the injured employee needs to circumvent workers’ compensation immunity and open the door to seek damages in circuit court. The employer who did not follow all the CDC guidelines or, perhaps worse, who may have put them in place but did not see to their strict adherence, may find itself subject to more significant costs than a few doctors’ visits and some lost wages.
As the workplace enters the “new normal” these scenarios will likely be playing out in all types of employment situations. Every instance will be different and unique and will need to be addressed on an individual basis.
For more information, check out this article: https://www.jaxdailyrecord.com/article/covid-19-and-workers-compensation-claims