Pre the COVID-19 outbreak, the NHS recorded increasing medical negligence cases and claims and, when this is all over, there is little to no sign that this trend will cease. This article discusses medical negligence claims that could arise from the virus, and how these unique issues may result in breach of duty on the part of medical professionals.
What is Medical Negligence?
Medical negligence is substandard care provided by a healthcare professional to a patient, which directly causes injury or worsens an existing condition. The medical professional will be judged by the standards of the specialty which he or she practiced while administering care to the patient.
A three-step process is used to determine medical negligence claims:
- Duty of care
- Breach of duty
- Harm and causation
Duty of Care
A duty of care is established when a patient is admitted to a hospital. This is an obligation on a medical professional or hospital to ensure care is taken in order to protect a patient from unnecessary risk of harm.
Breach of Duty
The Bolam test states that “if a doctor reaches the standard of a responsible body of medical opinion, they are not negligent”. This peer review system is used to determine whether a medical professional acted in a reasonable and acceptable manner or has breached their duty of care towards a patient. But given the challenging circumstances we face, will the Bolam test represent a viable solution?
Imagine this scenario: a COVID-19 patient receives medical care from a healthcare professional – say a general surgeon – who is acting outside of their area of expertise. For whatever reason, that treatment causes harm to the patient.
Applying the Bolam principle, what can be considered ‘a responsible body’ in this case? A body of general surgeons? A body of respiratory practitioners? What practice will be considered ‘acceptable’ in a pandemic? What medical opinion will be obtained to determine breach of duty? Medical negligence solicitors and the Courts will assess these questions in due course. But on the surface, the Bolam test may not be an appropriate measurement for COVID-19 related medical negligence claims under these circumstances.
Harm and Causation
Assessing causation may be especially difficult in COVID-19 cases. In fatal claims, for instance, medical reports indicate that many patients who dies from COVID-19 have underlying health conditions. Thus, there will be need to establish whether a patient died as a result of COVID-19, the existing (unrelated) health condition, or a combination of both; and would the death have occurred ‘but for’ the negligent care?
In non-fatal cases, it may be difficult for respiratory physicians to determine long-term lung damage, as the medical evidence to assess this may not be available for many years.
A Look Ahead at COVID-19 Related Medical Negligence Claims
Doctors and nurses have been at the frontline of the COVID-19 pandemic response. In fact, there are reports that retired practitioners have been recalled into service, final year medical students have stepped up into medical practice early, while some doctors have undergone re-training on the intubation process. As a nation, we appreciate the efforts these brave healthcare workers are putting in to tackle the virus. Indeed, “we are all in this together” at this challenging and uncertain time.
However, at a time when there have been thousands of illnesses and deaths arising from COVID-19, some patients may feel that they or their loved ones have been mistreated, and want to pursue claims for medical negligence. For obvious yet unpleasant reasons, medical negligence claims will inevitably increase. Asides the long-term effect of COVID-19 on the lungs, psychological pain related to exposure to the virus is another possibility.
How COVID-19 May Impact Medical Negligence Claims
Medical negligence claims related to COVID-19 may arise from a physician’s failure to diagnose the disease, a hospital’s poor preparedness and response to a pandemic, poorly trained healthcare workers performing procedures outside their areas of expertise, substandard treatment for a diagnosed patient, and the inadvertent exposure of patients to the disease.
Indirect medical negligence claims related to COVID-19 may also arise. This could include misdiagnosis of an ailment due to increased consultation needs, delayed chemotherapy treatment for cancer patients resulting in reduced life expectancy or death, increased dental negligence claims due to the termination of routine dental checkups and care.
What Guidance Can Past Cases Provide?
Although these are very unique times, the Pope v NHS Commissioning Board (2015) provides some insight into how medical negligence cases related to COVID-19 may be handled.
During the swine flu pandemic in 2009, the patient felt unwell and believed she had contracted swine flu. She visited her local healthcare center where she was examined by an experienced nurse who advised her to return home and rest. Only two days later, the patient suffered cardiac arrest and was admitted to the accident and emergency department. Though she was resuscitated, she suffered brain damaged and was disabled. Investigations revealed that the patient had swine flu as well as other pneumonia-induced complications.
An NHS negligence claim was made against the National Health Service. At trial, the Court established that the brain damage suffered by the patient was caused by a breach of duty. Under national guidance at the time, any flu-like illness was to be treated as swine flu. Had the nurse adhered to this guidance, she would have discovered that the patient’s blood saturation levels were low and recommended that she be admitted in a hospital. Upon admission at the hospital, the patient would have received appropriate treatment for swine flu, and the cardiac arrest would have never happened.
While each medical negligence case is unique, the principle of Pope is proof that, even under challenging and unprecedented circumstances, the Courts approach medical negligence cases as they always do: assess the medical professional’s expected state of knowledge and find out whether a reasonable body of medical experts would have acted in a similar way. However, it is important to note that factors such as availability of resources and ability to carry out some type of emergency responses will play a role in the final verdict.
Other Important Considerations
The Medical Defence Union (MDU) has called for legal immunity to be granted to medical professionals to protect them from COVID-19 related medical negligence claims. Considering the tremendous pressures they currently face, they want healthcare workers to be able to discharge their duty without fear of being unfairly judged in the coming months and years.
They also believe medical negligence claims compensation will drain the NHS resources and do little to boost the morale of NHS staff. What’s more, there will be economic consequences, as taxpayers will have to cover the cost of compensation payments.
But should COVID-19 related cases be piggy-backed in this way? Would it fair to ignore a patient’s right to make medical negligence claims and seek compensation from those who were responsible for their care? Truth is, the medical negligence law in the UK recognizes the fact that our healthcare workers are practicing under war-like conditions. The judicial precedent discussed above can be applied in COVID-19 related cases to determine the standard of care expected of a doctor, nurse, volunteer, trainee, as well as those working outside their areas of expertise.
While there are no known cases of medical negligence relating to COVID-19 at this time, this may soon change. Even if we do not yet know how these cases will be treated when claims are made, we can trust that our doctors and other medical professionals will not be unfairly judged. Ultimately, the Courts will be fair – to medical professionals and claimants – when considering COVID-19 related claims.
