In the past five decades we have seen three medical misconduct crises, each of which has resulted in rising insurance premiums, an avalanche of new legal claims, and insurers terminating in many affected states. Experts have been warning since last year that a fourth medical malpractice crisis was on the horizon, and this year the COVID-19 crisis has made the situation exponentially worse.
However, technical advances are likely to fuel the liability crisis as well, as Americans seem unable to part with their love of the “culture of technology” in the medical field, regardless of the many legal risks doctors face.
Impending crisis of medical misconduct
The previous medical malpractice crises occurred in the mid-1970s, mid-1980s, and early 2000s. All crises have seen litigation spikes, insurers willing to take the risk decline, and premiums spiked (premiums nearly doubled in the early 2000s).
Many state legislatures have attempted to solve these problems by limiting the amount of compensation a patient can receive for non-economic harm, also known as “pain and suffering”. Prior to the change, the juries had given six- and seven-digit personal injury awards in some malpractice cases.
However, these efforts do not seem to prevent the fourth crisis from straightening its head in the near future. According to an unpublished Milliman report from 2020, medical insurance policyholder premiums rose 74% from 2001 to 2006, declined significantly by 2017, and rose again 5.4% and 1.2% in 2018 and 2019, respectively.
Experts assume that the looming crisis will peak in the next 3 to 5 years. With the numerous crime reforms adopted in recent years to protect doctors from liability and the emergency immunity granted to some doctors in the context of the ongoing public health crisis, injured patients are likely to bear much of the financial burden of medical error .
Improperly used medical technologies are also expected to fuel the crisis, as 43% of malpractice cases were caused by the misuse of advances in technology in the early 2000s.
How technological advances can expose doctors to liability
Technological advances are designed to minimize human error and improve diagnostic and treatment outcomes. According to the sobering conclusion of the Institute of Medicine in a 1999 report, “Any technology introduces new failures, even if its only purpose is to prevent failure.”
Technological advances leave a lot of room for human error in both the diagnostic and treatment phases. The more advanced the technology, the more skill a physician must have in order to use that technology appropriately and successfully.
If the delivery of technology by the doctor resulted in inferior care and caused the patient’s injuries, he or she should prepare for litigation, especially since most medical malpractice attorneys currently operate on an emergency basis. Contingent fees paid to attorneys mean there is no longer a paywall preventing injured patients from filing lawsuits against their healthcare providers.
Some of the most common technical medical errors that have led to legal disputes include:
Bad medical decisions This has resulted in improper use of medical equipment and / or caused preventable injuries (At McRae v St. Michaels Medical Center, the injured patient was awarded a total of $ 1,796,000 in total damage for botched surgery on her broken leg, including 1,000. 000 USD given only for their pain and suffering)
Missed diagnoses that caused further patient complications or death (In Mahoney v. Podolnick, the family of a patient killed by gastric cancer sued his doctor for failing to give the patient emergency life-saving treatment after a tumor had developed an abdominal x-ray)
Improper use of new technologies: Countless new parents have sued their obstetricians for not using pulse oximetry to identify the clear signs of fetal distress during childbirth and delivery. This human error allegedly resulted in poor oxygen delivery or asphyxiation in the child, which ultimately resulted in permanent damage to the child’s brain and a serious life-changing diagnosis of cerebral palsy.
And the list could go on …
In addition to rising health care costs and the additional financial burden on injured patients caused by technology-induced medical malpractice, there is another lesser-known factor that could fuel the looming medical liability crisis: Doctors are more likely to avoid high-risk practices such as medical care as emergency care, gynecology and neurosurgery to protect against possible lawsuits.
However, this means that some areas of activity could soon be exposed to a significant shortage of staff, which can only further negatively affect patients.
We may be at the dawn of a new medical malpractice crisis, as recent insurance market conditions have shown, and the ongoing pandemic coupled with rapid advances in technology can only add fuel to the fire.
As patients ask for leaner, faster, and more technologically advanced healthcare, doctors are entering a race against time to master new technologies that require unusually high levels of skill.
In addition, new technologies like pulse oximetry make it easier for patients to identify medical errors and hold their doctors accountable. And since it is the physician’s responsibility to manage all of the risks associated with these new technologies, more and more physicians are advocating either limiting their liability or avoiding high-risk practices like obstetrics to avoid liability altogether.