The COVID-19 global pandemic may be over, but the impacts on healthcare organizations continue. While the staffing situation has stabilized in comparison to the acute needs during the pandemic, hospitals and health systems are still grappling with staffing shortages amid rising wages, consolidation pressures, and patient-safety concerns.
These patient-safety issues potentially include medical errors, longer wait times to access care, and delays in diagnosis and treatment, all of which are connected and avoidable. The worst staffing shortages experienced during the pandemic have passed—but that doesn’t mean that staffing shortages aren’t currently an issue and won’t be an issue going forward.
The US National Center for Healthcare Workforce Analysis, which is part of the US Department of Health and Human Services, projects a 10% shortage of nurses through 2036 nationwide and between a 10% and 13% shortage of physicians through 2036 nationwide. In 2024, 83 million Americans lacked access to primary care.
Amid current and projected staffing shortages, labor costs represent 60% of total expenses for hospitals and health systems, pressuring profit margins. Average labor costs increased by 22% from 2019 to 2022, while contract labor rates skyrocketed, according to Marsh McLennan. While burnout rates are either stabilizing or dropping, burnout remains a high risk, negatively affecting resilience and often leading to retirement or leaving the healthcare workforce.
At what point staffing issues impact medical professional liability is an open question. To provide insight into the impact of staffing shortages on hospitals and healthcare systems and on MPL, Inside Medical Liability Online spoke to four industry experts:
- Dana Frese, JD, CPCU, President and CEO, Healthcare Services Group
- Corey Grove, CEO, BETA Healthcare Group
- Jean-Paul Rebillard, President, MedPro Specialty
- Christine Vaglienti, AVP/Senior Litigation Counsel, West Virginia United Health System, Inc.
Factors Impacting Hospital and Health System Staffing
At the same time that persistent shortages are affecting hospital and healthcare employment, the proportion of Americans employed in the healthcare sector has grown to 10.8% in 2023, up from 10.6% in 2010 and 7.5% in 1990. Hospitals, physicians’ offices, outpatient care centers, and home health services all employ more people than they did pre-pandemic; that being said, employment is below expected levels. Employment in senior care facilities remains below pre-pandemic levels.
An analysis by the Peterson-Kaiser Family Foundation Health System Tracker reveals that health sector employment is 279,100 people lower than pre-pandemic trends suggest. Job openings tracked by the US government demonstrate that healthcare job openings have increased since April 2020. Quit rates in the healthcare sector have stabilized.
This evidence demonstrates that while the staffing situation has stabilized since the pandemic, there are still not enough employees to meet the demand of hospitals and health systems. Healthcare executives and managers need to understand that these shortages are likely to be an ongoing fact of life and develop strategies to ensure that they don’t negatively impact patient safety and result in MPL claims.
Relationship Between Staffing Shortages and MPL
Research reveals that overworked and understaffed healthcare teams are more likely to take shortcuts around patient safety procedures. A host of other negative outcomes can potentially occur in such environments, including falls and injuries, inadequate monitoring and supervision, and medication errors.
“Communication errors are the leading factor contributing to medical errors and malpractice claims,” said Rebillard. “Disruptions in staffing can lead to care being provided by people who are less experienced with the system’s patients, protocols, and personnel. This, in turn, can lead to an increase in communication errors during the course of care.”
Because the lifecycle of MPL claims is so long, there isn’t enough evidence to conclusively state that staffing shortages directly contribute to medical errors and claims, he added, although there are early signals that concern is warranted regarding that possibility.
For Grove, the relationship between MPL and staffing shortages is dependent on specific MPL claims and cases. “Plaintiff’s attorneys will argue that staffing shortages contributed to an MPL claim when it is perceived to be an issue, such as if there is a chain of command issue in a particular case,” he said. “While it is an issue and it does get raised in certain cases, I have to say it isn’t keeping me up at night.”
From his perspective, staffing shortages that exist stem from the COVID-19 pandemic, which exacerbated existing shortages to the point where many institutions routinely entered into short-term contracts with travel nurses. “The other elements besides ‘do you have enough people to take care of patients?’ is ‘do they know their way around the hospital?’ which can be the case with travel nurses,” he said. “Do they know the communication style of the physicians? These situations can create communication-type challenges, and in MPL cases, communication is huge.”
“We insure mostly hospitals, a lot of physicians, most of whom are tied to a hospital in some fashion, and some nursing homes, some freestanding and some tied to health systems,” Grove continued. “In our world, we see the staffing arguments raised a little bit more in the nursing home setting, but staffing requirements and patient staff ratios also exist at acute care facilities. That environment is seemingly always a set up for ‘you didn’t come around and check up on the patient often enough,’ regardless of the facility type.”
When long-term providers retire, quit, or leave the profession, there is a loss of institutional experience and medical knowledge that new hires can’t fill—at least not right away. This can lead to potential problems, said Vaglienti. “I’ve been doing MPL defense for the same health system for 33 years and I am really beginning to see that we don’t have those old guard nurses any more who have that ’Spidey’ sense that something is wrong, but they can’t exactly put their fingers on it,” she added. “We have a lot of younger nurses who haven’t yet developed that muscle to identify that something is wrong, even if they don’t know exactly what it is.”
This situation isn’t confined to nurses—it also includes radiology techs, respiratory therapists, and other providers, system-wide, she related, saying, “While it will take some time for this current generation to mature, they will get there and fill that gap, but in the meantime, there will be a gap.” The gap is a consequence of so many providers, especially nurses, retiring or leaving the profession during the pandemic. Research undertaken by the National Council of State Boards of Nursing revealed that more than 100,000 nurses left the workforce during the pandemic and that 900,000 more intend to leave the workforce by 2027, a fifth of the total of 4.5 million US registered nurses.
One strategy that hospitals and health systems are using to counter the shortage of physicians is to employ more advanced practice providers (APPs). While Candello research shows that the increased number of APPs hasn’t led to an overall increase in lawsuits against APPs, some systems are experiencing a rise in those types of claims.
“One of the models to relieve some of the stress on physicians is to use more APPs—physician assistants and nurse practitioners,” said Vaglienti. “We’ve definitely seen an uptick in lawsuits involving those kinds of providers. And some of the criticism, in those claims, is that the patient was too complex for this kind of provider or the provider was practicing outside the scope of their license.”
The mindset of plaintiff’s attorneys seems to be that if we are going to use those kinds of providers, they will sue those kinds of providers and make sure they get reported to their boards, just like physicians, Vaglienti said. “We used to never see a nurse, for example, named individually in a lawsuit or reported to a board, but we are seeing that much more now,” she continued. “In general, plaintiff’s attorneys are much more aggressive, and it isn’t necessarily related to staffing. They will throw anybody and anyone in the mix to see what sticks, and if they can make a claim of corporate negligence, they’ll do it, because they believe it’s easier for them to make a judge or jury mad at a corporation versus individuals.”
Plaintiff’s Attorneys Attack?
In the past, there have been some instances of plaintiff’s attorneys attempting to tie staffing levels to MPL claims. What is potentially of concern is the heightened levels of shortages during and coming out of the pandemic.
“Now that we’re past COVID, we’re seeing some plaintiffs’ lawyers, not all but some, ask in discovery: ‘What are the staffing ratios? What are hospitals requiring?’’’ Frese said. “They’re looking for a way to assert a corporate negligence claim, where they can bring a claim directly against the deep-pocketed corporate institution and not just blame the individual provider.”
“There have been a couple of cases we had where individual providers have complained about not having enough staff, and that elevated that issue in a lawsuit,” he continued. “Hospitals continue to have difficulty recruiting and retaining nurses and physicians—although it’s not as bad as it was in 2021 or 2022—so plaintiff’s lawyers know this is a vulnerability.”
Rebillard agreed that staffing-shortage issues have long been a target for MPL plaintiff’s lawyers. “Failure to meet mandated or recommended staffing levels has long been a problematic element of many lawsuits against healthcare systems and providers,” he said. “Our concern is that this could increase in the future as the healthcare industry deals with staffing shortages, caregiver turnover, and shifting of care from physicians to advance practice providers.”
“An example of something we are monitoring is CMS’ [Centers for Medicare and Medicaid Services] development of minimum staffing requirements for long-term care facilities,” Rebillard continued. “Nursing homes failing to meet such requirements would be easy targets for plaintiff attorneys, and could lead to both an increase in the frequency of claims and more challenges in defending against them.”
Whether staffing shortages or staffing ratios are more of a focus of attention today than in the past for plaintiffs’ attorneys or not is open to debate. That being said, there’s no doubt when a set of facts presents itself around these issues that they are prepared to capitalize on that.
“We don’t see staffing shortages, staffing ratio requirements, or other staffing issues necessarily as a trending type of claims issue,” noted Grove. “It’s just always out there in the right case. It’s a good question to wonder whether it’s worse after COVID or not, other than the communications and team issues in relationship to travel, and short-term, nurses.”
Mitigating Potential MPL Staffing Issues
There are a number of steps that hospitals and health systems can take to mitigate their staffing challenges and potential links to MPL claims, which include:
Engage in Dialogue: One step that hospital and health systems executives and risk managers can take to mitigate the risk that staffing issues will lead to MPL claims is to engage in proactive dialogue with their treatment teams, Frese noted, saying, “You don’t want to get in a situation where you have a culture such that team members are complaining about understaffing in a deposition.
“Unfortunately, this happens where providers will say that they didn’t get the support they needed or were asked to do more than they could,” he continued. “There’s an excuse as to why there was a negative outcome. That excuse is never going to resonate with a jury. So, executives need to be empathetic to their staff, communicate with them, talk about solutions, have an open dialogue.”
Frese said that an acknowledgement of the situation, a plan for addressing it, and a commitment to quality care and adequate staffing go a long way to alleviating internal concerns that can lead to complaints—or open division that plaintiffs’ attorneys can exploit to their advantage.
Mitigate burnout: Surveys reveal that burnout is prompting more healthcare professionals than ever before to report an intent to leave the profession in the future. Addressing burnout is a focus at BETA Healthcare Group, Grove noted. “From a risk management and education standpoint, we are working with our insureds to help them identify healthcare-provider burnout and how to address it,” he said.
“There is promise with AI and I’m hopeful that with this and other emerging technologies we can address issues like the fact that so many physicians and nurses are burned out from dealing with electronic healthcare records,” he added. “To the degree that we can make the administrative side of health care delivery less burdensome so that providers can spend more time at the bedside, it can potentially improve providers’ work lives.”
Initiate Healthcare Career Training Programs: Organizations such as West Virginia United Health System are expanding existing in-house training programs, which is an option for organizations with captives. “West Virginia University has recently started a physician assistant program. West Virginia University Hospitals, Inc. has had a radiology tech program for a long time, and now WVU Medicine is starting a 21-month nursing diploma program,” Vaglienti said. “If a student finishes the nursing diploma program and commits to working at any of the System’s 24 hospitals for three years, their educational fees and expenses are covered. We also have an Aspiring Nurse Program that encourages and incentivizes current employees and non-employees to obtain a nursing degree by providing stipends as they pursue nursing education.”
MPL insurers can also encourage their insured healthcare systems and hospitals to consider setting up these kinds of programs to mitigate staffing shortages that might be linked to future claims.
Partner with local educational organizations: Frese notes that some of the hospitals insured by Healthcare Services Groups have developed agreements with local community colleges and nursing schools to provide scholarship money to students who will agree to work at their facilities upon graduation for a specific period of time. “Essentially, we’ll invest in them if they invest in our system, is the approach we’re seeing,” he said. “That’s an example of a very creative way to invest in young people and, in turn, have them invest in their local community. These situations benefit the community, the hospital, the school, and the students. These are types of programs that have to expand to meet the need we’re seeing.”
Healthcare Services Group provides matching scholarship funds to help the current employees of hospitals engaged in these types of programs, he continued, and this is one area where the MPL industry can partner with their insureds to help solve the ongoing problem of staffing. “Young people have different options—a lot of them prefer to work remotely,” he said. “The whole idea of working around other people doesn’t necessarily appeal to certain segments of our population today, but in healthcare, you have to be in person primarily. This issue of succession planning—replacing talent isn’t just a problem for healthcare providers, it is a problem for insurers, so we have to work together.”
Explore remote treatment modalities and services: In rural states such as West Virginia, the population is spread out, older, and sicker than in many more urban-centric states. Remote monitoring of patients at home can help, said Vaglienti. “Telemedicine was a good thing that came out of COVID and we’re trying to use that experience to find different ways to communicate with and stay in touch with patients,” she said. “We’re calling patients with congestive heart failure every other day to check on their weight and see if their medication needs to be adjusted.”
“There are some patients who can see their provider remotely three times a year and once in person,” she continued. “We’re finding ways to treat patients remotely that we might not have employed before COVID, and I think that is another way to deal with some of the staffing issues that healthcare systems and hospitals are having.”
The Way Forward
With shortages of healthcare workers projected into the next decade and beyond, staffing shortages aren’t likely to be permanently solved any time soon. That means that hospitals, health systems, and their MPL insurers need to be cognizant of the challenges and work together to solve them.
“It’s hard to imagine a near- or medium-term future in which the healthcare industry is facing a more favorable regulatory and economic environment related to staffing,” noted Rebillard. “With that in mind, MPL carriers will have to prepare for more and different underwriting and claims challenges—and work with our customers to address them.”