Covid-19 claims: The elephant in the room?


Posted by Matthew Best, senior underwriting manager at Litigation Futures Associate Temple Legal Protection

Best: The right to pursue a clinical negligence claim will be upheld

The idea of suing the NHS for compensation of a wrongdoing/malpractice may not seem the right or popular option right now. Everyone in our sector is wondering how this will pan out.

Clinical negligence case numbers have dropped for certain law firms but maintained a sustainable level for others. The High Court is certainly seeing lower numbers than the county courts.

People may not want to pursue action against the NHS at this very moment, but there will come a time where people will indeed want redress.

In my discussions with clinical negligence solicitors, I have been asked many times if we are likely to be hit by a ‘tsunami’ of pandemic-related cases.

I don’t believe there will be a wave of Covid-19 clinical negligence claims themselves. But we may be presented with high volumes of cases about a delayed diagnosis or treatment of specific conditions. I cannot see those being brought for a few years yet though, as it is clear the NHS is way behind on investigations and reviewing complaints, etc.

High on the agenda are calls for an inquiry into the Department for Health and Social Care and its management of the response to the coronavirus. Without doubt, once the dust has settled on this most awful period of time, serious questions will need to be asked – and answered.

It is highly likely (perhaps certain) that these matters could end up in the courts and see judges establishing precedents on claims relating to alleged clinical negligence over this period.

One other point I want to address before moving on is in relation to the possibility of a ‘no fault scheme’ health minister Nadine Dorries recently revealed is being considered.

I find this idea astonishing. Surely introducing a ‘Swedish-style’ model will just increase the amount of cases where compensation is paid out? It will do so because it effectively removes breach of duty.

To put this into context, if we think about all of the cases where an error was made but breach of duty wasn’t proven, those cases would likely settle under a no-fault scheme. This is at odds with the long term aim of saving money.

I would be very surprised if the government entertained such an idea seriously; it simply is not sustainable.

Turning to the elephant in the room and the two big questions. First, should patients be able to claim damages for negligent care during the Covid-19 pandemic?

As with many others who’ve written on this, I believe it is likely that the right to pursue a clinical negligence claim will be upheld. This is regardless of whether the NHS faced an unprecedented healthcare crisis or was forced to use inexperienced staff to treat patients during a pandemic.

The government seems alive (and dare I say) well prepared for a rise in coronavirus-related medical negligence claims; this is apparent from provisions of the Coronavirus Act 2020. Clauses 10 to 12 include the power to provide indemnity cover to healthcare workers and others carrying out NHS activities connected to the pandemic.

The provisions are primarily intended as protection for those services provided by retired doctors or medical students who fall outside pre-existing NHS indemnity arrangements. Clauses 28 to 29 removes the requirement that inquests must be held into coronavirus deaths.

It is my view that, if a patient falls victim to negligence during the pandemic, they should indeed retain the right to investigate and make a claim, in the same way as before. If they can prove negligence caused them harm, they should be entitled to legal redress. Every patient in a hospital is owed a duty of care.

Second, what standard of care should be required and expected in the midst of a global pandemic?

The views I have heard from solicitors absolutely recognise that hospitals faced a massive increase in the number of patients, and that some doctors were asked to work outside their expertise, in areas where they may not have the most up-to-date knowledge.

Doctors who have not covered general medical or A&E matters may, as a result, have been asked to recognise and treat medical emergencies such as strokes, heart attacks or meningitis.

The consensus from my discussions was as expected: the court will always look at the individual circumstances of a case. Context is key and it has to include the demands placed on medical professionals.

However, one expert solicitor customer of Temple rightly highlighted case law such as Wilsher v Essex Area Health Authority [1988] AC 1084, which makes allowance for errors made during so-called “emergency or battle conditions” and which may require a different assessment of the standard of care.

My view is that the flexibility in the legal test does cater for such ‘battle conditions’, so is not really looking at a different set of standards. Applying the same principle to the current situation, it is reasonable to assume that the pandemic put general wards and intensive care departments in a similarly pressured environment.

If, in such an environment, an overstretched doctor did something wrong while caring for unusually high number of patients or had to take a difficult decision on the spur of the moment, the court may not be quick in holding them negligent.

I would add that it is likely the courts will take notice of the time an alleged act of negligence takes place and review the circumstances and what was occurring then.

Take as an example a patient showing flu-like symptoms, who suffered a cardiac arrest and subsequent brain damage, and was taken to a health centre and seen by an experienced nurse. If nothing was done to treat that patient, has the nurse failed to follow national guidelines to manage all flu-like illness and refer the patient to hospital?

This scenario shows that, even during an unprecedented health crisis, the courts approach to the issue of clinical negligence should be as they always do; examine the state of knowledge of the medical profession at the material time and ask ‘whether a reasonable body of professionals would have acted in the same way?’

Any deviation from these guidelines without good reasons will likely therefore be criticised.

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