By: Angela Pacheco Gette
Consistent with insurance carriers industry-wide, health care professional liability claims among THIE’s subscribers have remained relatively flat over the last several years. Claim counts across all lines of THIE’s business were lower in the first quarter of 2022 than they have been in the first quarter of the preceding four years. However, the industry remains guarded in light of new and increasing challenges facing our health care facilities and providers.
Staffing shortages continue to represent the most clear and present danger, leaving insureds exposed in a variety of ways. The most direct exposure comes from inadequate staffing, which forces health care professionals to take on additional duties, responsibilities, and hours. These additional duties or responsibilities may include caring for more patients than usual or working in different units than usual. Deviations from one’s normal workload and set of responsibilities creates an increased risk of error by the health care employee.
Staffing shortages, and the resulting change in duties or responsibilities, also increase the risk of a corporate negligence claim against a hospital or health care facility based on allegations of negligent hiring, training, supervision, or retention of staff. Such claims may result in direct liability against the facility, in addition to any vicarious liability arising from injury caused by an employee. For facilities with one business entity owning the facility and a separate entity operating the facility, these direct liability claims pose an even greater risk if the owner facility handles any of the hiring, credentialing, training, or policy-making duties on behalf of the operating facility. It is critical that these entities carefully examine what roles they are undertaking and what attendant risks are associated with those roles to ensure they are maintaining proper insurance coverage, so no entity is exposed to unintended extra-contractual liability.
Supply chain issues are also creating an increased risk of exposure for health care facilities. No industry is immune to the disruptions occurring in the global supply chain. For health care facilities, these disruptions could impact availability of medications, personal protective equipment, or medical devices, thereby increasing potential exposure for the facility. Attention must be given to supply chain preparedness and response to reduce risk associated with supply chain disruptions.
Finally, social inflation continues to be a concern for carriers and health care facilities. The increasing frequency of criminal charges being brought for acts of medical negligence has potential to drive social inflation in health care professional liability claims upward because it normalizes punishing a health care worker for an unintentional error. While the Texas caps on non-economic damages in health care professional liability cases help blunt the impact, savvy plaintiffs’ attorneys can use social inflation drivers to increase the economic damage components in high severity medical malpractice claims.
Now, more than ever, health care facilities and employees, must evaluate these potential risks with a critical eye, undertake mitigation efforts where possible, and ensure that they are adequately covered in the event a claim is made.