Peter Cridland, Paul Greve, and Lori Semlies provide answers to audience questions from their PLUS Healthcare & Medical PL Symposium panel, COVID-19 MPL Claims: Tidal Wave or Trickle? This session reviewed and analyzed actual and potential MPL claims related to COVID-19 as well as the laws enacted providing immunity for these types of claims at the federal and state levels and challenges to those laws or executive orders. The speakers answer attendee questions below.
- Have you seen activity from COVID testing labs / screening services?
- All: Not in any volume. One—Lori Semlies recently was able to get a suit against a hospital laboratory for defending a false positive hospital laboratory test discontinued.
- For Lori, will you be using the conflicting and constantly changing guidance to nursing homes in their defense? We are recommending that they keep a running log of changes, regulatory memos, and their response.
- YES!! same—we sent them a playbook and are using a binder of the time line of the guidance
- We are seeing pro plaintiff judges in some states moving the more volatile cases ahead of lower severity matters on the trial docket (even ahead of criminal trials) to ensure the plaintiff’s bar is prioritized. It presents an unbalanced front loaded problem for providers and carriers and risks further exacerbating the social inflation problem stemming from runaway verdicts. Grateful for any feedback.
- Peter: I am seeing panic from the bench about the backlog which we expect to work against the defense bar
- Even if the halo effect lasts with individual healthcare professionals, I don’t think it will translate to the organizations that employed them. The hospitals and healthcare facilities were laying staff off while nurses and doctors were working short staffed to care for COVID. How might defense look there?
- Peter: Good point – the lack of “personification” of a healthcare entity has always been a challenge and will be brought into tighter focus here. This is where the “time machine” will play dividends – the entities were trying to react to changing guidance, treatment protocols, staffing availability, etc. – showing the jury what it was like for the hospital risk manager when things were changing so quickly and helping them put themselves in the hospitals “shoes” will help.
- Please clarify why the disconnect between Justpoint and what we are actually seeing.
- Paul: It is difficult to know how the plaintiff’s bar is calculating these numbers. There is no real national database to track active MPL litigation. But Justpoint cites Ohio as having the most cases. Yet in checking with defense attorneys in that state they have commented that they are not aware of any COVID claims and one has stated that the plaintiff’s attorneys he knows have said they do not have any desire to pursue this type of MPL litigation.
Vice President, TransRe
Peter Cridland is a Vice President with TransRe, overseeing all U.S. Cyber Claims and handling Medical Professional Liability claims. He works with underwriting and claims teams globally on a variety of issues including risk tolerances, underwriting goals, and claims projections. Peter works with reinsureds to help them stay ahead of the curve on claims handling, loss prevention, and loss mitigation strategies. He is a frequent speaker on both healthcare and cyber liability topics, including the intersection of the two lines, and he founded and co-edits the TransRe Cyber Newsletter, with global distribution. Before coming to TransRe, Peter was a medical malpractice defense litigator in New York City.
Attorney at Wilson, Elser, Moskowitz, Edelman & Dicker, LLP
Lori Semlies, a co-chair of the firm’s Medical Malpractice & Health Care Practice, defends medical and nursing home malpractice claims in state and federal courts, including all phases of litigation through trial. She also formed the firm’s Coronavirus Task Force for the defense of health care claims. Lori sits on several firm committees, including Wilson Elser’s Executive Committee.