What’s next in malpractice litigation?

Malpractice litigation isn’t what it used to be. Successful medical malpractice claims have been falling in number over recent decades. The trend could shift, however, if litigators gravitate toward new, tech-related frontiers of the practice.

The rate of paid medical malpractice claims fell nearly 56 percent from 1992 to 2014, while the average payout climbed 23 percent, according to a CBS News report.

That paradox – claims falling in number but climbing in average value – makes perfect sense given that tort reform has presumably discouraged cases with less merit. Successful patient safety initiatives and a changing public mindset about malpractice litigation probably also contributed to the drop in paid claim frequency.

With traditional malpractice litigation constrained, there will potentially be new occasions to sue and new ways of suing.

Technology risks

For example, the USI 2018 Insurance Market Outlook recently published a list of “ancillary” factors driving increased malpractice exposures and liability, including technology-related risks, creative liability filings and foreign liability.

On the technology side, USI said the following risks that may affect patient care:

• Lack of security talent.
• Legacy equipment vulnerable to hackers.
• “Hyper connectivity” fueled by Meaningful Use requirements.
• Electronic health record vulnerabilities.
• 3D printing of implants, prostheses, etc.
• Robots used in surgery and remote care.

Creative liability filings involve “strategies to circumvent medical malpractice caps by bringing claims under general liability,” USI said. And foreign liability includes suits filed against U.S. physicians doing work abroad.

Genomic malpractice

One fascinating area of emerging malpractice liability is genomic malpractice – mistakes around genes, genetic testing and their application in medicine.

“[A] significant number of serious injuries and deaths may be occurring and many physicians may lack the required expertise to apply this new technology appropriately,” states the Food and Drug Law Journal of the nonprofit Food and Drug Law Institute. The writers describe an “ample supply of adverse outcomes” in areas like cystic fibrosis and breast cancer, where timely genetic testing may have altered medical decisions.

Although genomic malpractice cases are not yet common, the journal said, “the cases that have been litigated demonstrate a relatively high rate of success for plaintiffs; moreover, the average payout in such cases is an order of magnitude higher than traditional medical malpractice cases.”

Only a dozen or so cases are closed per year, the writers report. The tide would be expected to rise, however, as more clinicians enlist genomics and clear decision rules emerge, according to the journal: “As more of their colleagues achieve success in bringing genomic malpractice cases, the interest and pursuit of the medical malpractice plaintiffs’ bar in bringing these cases could grow exponentially.”