For healthcare professionals, malpractice is down as other issues rise

The healthcare field covers a broad range of professionals—from psychologists to emergency room doctors to nursing home staff and everything in between. But the legal problems they face are often the same. Malpractice suits are consistently one of the top issues along with licensing problems.

However, the pandemic has brought about some changes, according to Beth Catenza, member and former chair of the litigation department at Sullaway & Hollis, PLLC, in Concord, NH.

She noted that, nationwide, there has been a downturn in the number of malpractice lawsuits.
“There are a number of theories as to why, but some say there have been fewer elective procedures and staffing shortages so there are fewer opportunities for a malpractice event,” she explained.

Also, a large backlog exists of cases going to court as a result of COVID-19. “I wouldn’t have ever predicted lawsuits would go down, but they did,” Catenza said.

Regardless of the field, allegations of malpractice require the same level of proof, she said.

It must be proven that a deviation occurred from the standard care of what a reasonable healthcare professional would have done under the same circumstances. Then, it must be proven there was a violation of that care causing harm. Catenza explained.

Specialty medical professionals tend to get the bulk of lawsuits.

“Surgeons are number one—general, neuro, and orthopedic being the top ones,” she said. “The number two specialty is medical doctors—that’s your primary care, internal medicine in hospitals, oncologists, hematologists. That kind of thing,” she added.

With fewer in-patient visits, the number of patients who delayed care and have worsened medical conditions has increased as a result. Catenza used one example of a patient who initially put off her mammogram and then subsequently came back with a lesion that might have been caught sooner.

Americans have become sicker during the pandemic with both mental and physical ailments. As most realize, hospitals were jammed with the initial surge, followed by the delta and omicron variants. The result was a re-occurring wave of staff shortages and overcrowding.

While malpractice cases have decreased, licensing complaints have increased.

With the advent of regular telehealth usage because of the pandemic, healthcare professionals are finding the need to be licensed in other states to care for people virtually.

In some cases, coverage for telehealth has expired but with a caveat that providers can apply for a state license to continue seeing those patients online, as in Rhode Island.

Milt Kerstein, managing partner at Kerstein, Coren & Lichtenstein, LLP, in Wellesley, Mass., regularly works with mental health care professionals on licensing issues. He said often most licensing boards have a continuing education requirement and if a professional hasn’t kept up with it, there’s a problem.

Or, it could be an innocent error like neglecting to notify the board of an address change.

In other cases, the licensing board gets involved when there’s an issue of impairment. Kerstein discussed one client who had a bad reaction to a medication and was accused of being impaired on the job.

While that might be an innocent mix-up, sometimes, the practitioner is impaired because they are relying on alcohol or other substances to cope with their own depression or anxiety.

“No shade on the board. They are charged with the well-being of the public,” he explained. “But it’s just ironic that overworked practitioners have ended up with the same issues as their patients. It’s an unfortunate consequence.”

He said the mental health professionals have done a “yeoman’s job” going above and beyond the call of duty to help their communities. But now those mental health professionals are suffering from the same problems as their patients and it’s taking a toll on them, too.

Like a lot of other industries, Kerstein said the licensing board is struggling with the consequences of the pandemic. Everything is moving slower and taking longer. In fact, a lot of work is still being done via Zoom or other virtual platforms and not in the office.

Kerstein said practitioners have the option to settle complaints, but they often wish to be heard so the matter ends up in court. Right now, that means a backlog of cases.

Jody Erdfarb, partner in the healthcare department at Wiggin and Dana in their Stamford, Conn., office, has a different take on the legal issues practitioners face. She said what plagues healthcare professionals legally depends on perspective.

If the practice focuses in licensing and audit or consolidation and acquisition, that would be your concern. The same holds true for malpractice.

It also depends on the specialty and practice size. For Erdfarb, who works in the audit and investigation side of healthcare, these areas have exploded as a result of the pandemic.

Both commercial and government payors look for outliers. Are you billing too much? Did this telehealth session actually take place?

While much of the investigation is still focused on in-person care, Erdfarb said “we are on the cusp of a major audit for telehealth.”

And that’s because there was a massive uptick in the need for it during the pandemic. As she put it, “the doors blew open.”

Kerstein said when it comes to litigation, getting a jump on the problem is key. He advised if there is any fear of an issue, practitioners should find an attorney as soon as possible.

“The best defense is to defend proactively,” he said. “When people try to represent themselves, it doesn’t go well.”