What has happened?
Questions are being raised about the right of patients to claim for clinical negligence in relation to a healthcare worker’s ‘negligent’ actions during the COVID-19 pandemic.
The NHS has introduced an ‘additional indemnity coverage’ scheme. This scheme is available for cases whereby healthcare professionals have carried out activities related to COVID-19. This is in accordance with clauses 10-12 Coronavirus Act 2020. [1]
What does this mean?
Clearly, the government predicted there would be a large number of negligence claims following the pandemic when drawing up the Act. Clauses 28-29 Coronavirus Act 2020 abolished the requirement that inquests should be made into COVID-19 deaths, which is necessary by law for other notifiable diseases. [2] This is necessary due to thousands of retired medical professionals and final year medical students being urged to work on the frontline in the midst of the pandemic.
Clinical negligence: an outline of the law
In clinical negligence claims, there are three requirements which need to be established in order for a claim to succeed. Firstly, a duty of care between the medical professional and patient needs to be established. Secondly, a breach of duty needs to be established.
The Bolam test requires the court to question whether the professional acted in accordance with the standard accepted as responsible by a body of professional opinion. [3] Significantly, Mulholland v Medway NHS Foundation Trust shows that medical negligence claims are always considered in context, therefore NHS actions will be judged in the context of the pandemic. [4] This means that lack of information, limited resources and the vast amount of less experienced staff will be considered.
Wilsher v Essex HA considers the standard of care when professionals are acting in emergency situations. This is a useful case as it requires the court to consider the COVID-19 crisis in relation to the individual’s conduct. [5]
Interestingly, Pope v NHS Commissioning Board considers clinical negligence in the context of the swine flu. A patient was sent home from the hospital with flu-like symptoms and later became brain damaged. The court held that the nurse was negligent as the guidance at that time required all flu symptoms to be treated as swine flu. [6]
This case teaches that in an unprecedented health crisis the courts handle clinical negligence cases similarly to how they usually do: they evaluate the professionals' actions in context of that particular situation, at that particular time, with the particular knowledge available at that time.
How will this impact the law?
The Medical Defence Union (MDU) has asked for doctors to be immune from coronavirus related claims. This is on the basis that compensation will drain the NHS resources and British taxpayer even further.
It may be too onerous to place liability on a medical professional who had to decide the correct way to stretch out intensive care resources in an emergency situation.
Alternatively, immunity could result in a lower standard of care being imposed on medical negligence claims for an indefinite period. In recent years there has been a purposeful shift from a paternalistic relationship to a more autonomous relationship between doctors and patients.
Immunity and removing oversight may be regressive. Vicarious liability means that although the professional wouldn’t incur a financial burden, they are deeply professionally affected. Immunity would remove this type of responsibility.
The MDU asked for doctors to be immune, yet what about the professionals who work alongside doctors? Maybe people who stepped up to work on the frontline should be immune but healthcare professionals working ‘as usual’ should be judged at the same standard? [7]
The answers to these questions are currently unclear but hopefully, a fair system is established once the pandemic has settled.
Written by Hannah Travis
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#SlaterandGordon #IrwinMitchell #Kennedys #AnthonyCollins
References:
[1] NHS Resolution: Clinical Negligence Scheme for Coronavirus < https://resolution.nhs.uk/services/claims-management/clinical-schemes/clinical-negligence-scheme-for-coronavirus/> accessed 25 September 2020
[2] ‘Clinical negligence in the time of coronavirus’ (Hospital Times, 2020) < https://www.hospitaltimes.co.uk/clinical-negligence-in-the-time-of-coronavirus/> accessed 28 September 2020
[3] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
[4] Mulholland v Medway NHS Foundation Trust [2015] EWHC 268
[5] Wilsher v Essex Area Health Authority [1988] AC 1074
[6] Pope v NHS Commissioning Board [2015] 9 WLUK 380
[7] Kieran Duignan and Chloe Bradbury, Covid-19 and medical negligence litigation: Immunity for healthcare professionals? (SAGE journals, 2020) < https://journals.sagepub.com/doi/full/10.1177/0025817220935892> accessed 28 September 2020
Disclaimer: This article (and any information accessed through links in this article) is provided for information purposes only and does not constitute legal advice.