As ‘Medical Distancing’ Eases, Litigators Expect Malpractice Cases to Surge in 2021

Posted on December 07, 2020

Daily Business Review

Daily Business ReviewThe number of people in South Florida getting elective medical procedures has fallen to the point where one attorney specializing in medical malpractice law recently noticed an unusual billboard while driving on Interstate 95.

“People have retreated from going to the dentist, their private doctor, and it’s gotten to the point where major health care systems have put together this website called, ‘Stop Medical Distancing,’” said Stuart Ratzan, a partner at Ratzan Weissman & Boldt in Brickell, adding that the billboard on I-95 told visitors, “It’s time to start talking to your doctor again.”

And the fear is real. People have stopped entering medical facilities because of the potential susceptibility of becoming infected with the coronavirus, leading to a significant backlog for non-urgent surgeries. But once most of the population is immunized to the coronavirus, Ratzan said, there will be a surge of patients seeking these elective procedures.

As a result, Ratzan predicted that by next summer there would be a heavy burden on physicians to put as many patients under the knife as possible to meet the surging demand to avoid losing a potential patient who might seek surgery at another medical facility in order to obtain treatment sooner.

“The trouble is on the health care provider side, they are just so hungry for work again they will overburden themselves by increasing patient load,” Ratzan said. “And if patients are neglecting their care or avoiding their own warning signs for fear of seeing a doctor because of the virus, that could contribute to that outcome.”

Now, personal injury attorneys, such as Ratzan and Ramon A. Rasco, a partner at Podhurst Orseck in Miami, are preparing for physician errors leading to medical malpractice cases as hospitals try to book as many patients as possible.

Part of the reason for the decline of elective surgeries is that several states, including Florida, banned the medical procedures early on during the coronavirus pandemic.

Among the problems was the scarcity of certain medical equipment. For instance, in surgery that involves putting a patient under general anesthesia, the patient must utilize a ventilator to breathe during the procedure. But these ventilators were needed for patients with severe COVID-19 infections.

As a result of the ban on elective surgeries, many hospitals, such as Memorial Healthcare System, had to cut staff before Florida Gov. Ron DeSantis authorized elective surgeries to resume.

Still, hospitals have been facing a financial problem balanced against an ethical responsibility. Hospitals must treat patients with the coronavirus, which results in a hit to the hospitals’ bottom lines when elective procedures are deferred because these procedures generate a significant amount of revenue for hospitals.  Patients suffer as well, because treatment delay may lead to negative consequences to these patients whose elective surgeries are deferred.

Rasco said it is “common sense” that patients with other critical care cases may receive fewer resources devoted to their care than patients infected with the coronavirus.

“If a lot of hospitals are over 100% full and you only have limited staff and limited health care providers qualified to treat COVID-19 and other critical care conditions,” Rasco said, “that results in less treatment for some people and that could be a source of additional litigation for hospitals.”

Still, Rasco is looking to the day in the future when most Florida residents and out-of-state visitors seek elective surgeries because those cases will be easier to prove before a jury or to settle with the opposing side. Rasco said government agencies, such as the Centers for Disease Control and Prevention, are not providing a “well-defined standard of care” because their understanding of how to treat those infected with the coronavirus is constantly evolving.

“So you’re definitely going to see an increase in surgeries in 2021,” Rasco said. “Just like jury trials are being postponed, you’re going to see an uptick in those surgeries and that will be a source of additional cases of medical malpractice.”

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