Presently, the Royal Colleges, Regulators and Government bodies are producing, amending, updating and implementing plans, guidance and protocols for what I will call the “reopening” of healthcare services. This is about restarting or scaling up elective surgery and other healthcare episodes that have been deferred, delayed or cancelled because of the restrictions imposed during the coronavirus lockdown.
Healthcare managers and professionals are being asked to prioritise healthcare services to manage and overcome the huge backlog of treatments and care. That backlog was reported on 10 June 2020 to be about 4 million treatment events currently, but at risk of surpassing 10 million treatment events before the end of the 2020 calendar year.
The logistics of achieving this “reopening” of services - the ethical, political, local and regional, and personal impacts, on healthcare providers, patients and healthcare staff (whatever their roles) cannot be understated. It really is the proverbial “mountain to climb”.
Those challenges sit alongside the efforts some will be making to prepare and pursue the malpractice claims that emerge from this pandemic. Those claims will be based on:
- An alleged failure to prepare for, or respond appropriately to, coronavirus
- An alleged failure of healthcare providers to diagnose coronavirus
- An allegedly negligent failure to take appropriate precautions to prevent or limit the exposure to, and spread of the coronavirus among, patients (or staff)
- Allegedly negligent failures that result in the delay of treatments and procedures unrelated to coronavirus, or the misdiagnoses or late diagnoses arising from non face-to-face or “virtual” consultations, causing harm
The Good Samaritan?
The Medical Defence Union (MDU) has proposed that doctors should be given immunity from negligence claims arising from treatment delivered during the coronavirus crisis. Some doctors are being asked to work outside their areas of expertise to manage and treat coronavirus sufferers. One can see how that would include those retired doctors who responded to the Government’s call for them to return to work (as Good Samaritans, one could argue) or final year medical students who have started work early to help out. The call for immunity was made to spare doctors the stress and anxiety of malpractice claims, and as Christine Tomkins, the Chief Executive of the MDU observed:
“medical liability claims will come long after public memory of the sacrifices made by healthcare workers have been forgotten and the circumstances of the pandemic, which require people to work outside their speciality and beyond their experience, will also be forgotten.”
She has a point. Scanning the web pages of UK law firms who typically represent claimants, I came across this, which is a direct quote lifted from the web page of one lawyer acting for potential claimants in the UK:
“So my question is - should the outstanding efforts of the NHS stop anyone who has suffered avoidable harm due to those employed by the NHS from bringing a claim? The answer has to be no.”
That, I am afraid, will be the justification presented to healthcare providers and professionals (and their insurers), after an appropriate period, to ensure those promoting such claims do not look too much like what in the USA are often referred to as “ambulance chasers”.
Sadly the coronavirus pandemic will result in more malpractice claims. People have died and the long-term impact on coronavirus survivors is likely to deliver potential claimants to their legal champions. Now that clinical services are to scale up, we will see the emergence of claims from patients where their treatment was delayed and their condition may have worsened, or where diagnoses were made that were wrong, and made following a telephone or other remote consultation.
Do we need a new legal test for breach of a duty of care?
According to the Bolam test, a doctor is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of doctors. That test is augmented by the later case of Bolitho, which required the body of opinion that Bolam speaks about to be reasonable, responsible and able to stand a logical analysis and scrutiny of risks and benefits.
But what is the “responsible body” of opinion at the moment? These are novel times. For doctors acting outside their specialism or using a different method of assessing patients, such as a virtual/remote consultation, will the courts apply a different test? History suggests not, so for example, the less experienced doctor undertaking a particular healthcare task will be judged according to the expectations of a doctor expected to be reasonably proficient in the task they undertake. In other words – no “dabbling”.
This raises the question as to what is “reasonable and responsible” as set out in Bolitho in such exceptional circumstances? Some commentators have suggested a new legal test would have to be formulated, as has happened to some extent in consent cases where the Montgomery test has effectively made the Bolam test redundant when assessing whether a patient has been appropriately advised of the material risks before consenting to treatment (see our article here). Could the present crisis result in a further move away from Bolam?
There is some precedent to consider from an earlier outbreak of infection. In the case of Pope v NHS Commissioning Board (2015), the High Court held that the nurse at the centre of the allegations had failed to act in accordance with national guidance for managing swine flu. Essentially, the court had approached the issue as they always do by examining the current state of knowledge of the medical profession at the time and asking whether a reasonable body of medical professionals would have conducted themselves in the same way. In Pope, there was national advice regarding the steps that should have been taken whenever a patient presented with flu-like symptoms, and this had not been followed. A reasonable body of nurses would be expected to follow national guidance.
In his recent article on the subject for the Harvard Law School blog Bill of Health, John Tingle referred to Jackson LJ’s discussion of the applicable principles of law, and that the experience and length of service of the individual nurse or doctor are left out of the reckoning when establishing the legal standard of care. The test is objective. Healthcare staff are to be judged by the standard of skill and care appropriate to the post they fulfil and the tasks they perform.
In her blog of 30 March 2020, Eloise Power of Serjeant’s Inn Chambers, identifies a possible judicial approach to establishing a legal standard of care during the coronavirus pandemic can be found in Mulholland v Medway NHS Foundation Trust (2015). The judgment of Green J indicates the importance of considering the context and circumstances when establishing a standard of care. That case had as its central context the duty of a doctor working in an Accident and Emergency department where the judge found that “the standard of care owed by an A&E doctor must be calibrated in a manner reflecting reality.”
In his excellent article for Hospital Times, Lionel Stride of Temple Garden Chambers identified that:
“while every case is factually specific, the principle of Pope is that, even in times of an unprecedented health crisis, the courts approach the issue of clinical negligence as they always do; by examining the state of knowledge of the medical profession at the material time and asking whether a reasonable body of professionals would have acted in the same way.”
But he also noted that:
“… the extent of any strain on resources, and potentially the more limited ability to perform some types of emergency care, will undoubtedly impact on this analysis.”
Proving breach of duty, whatever the test is, is only part of the story. Many claims for damages for injury arising from alleged malpractice fail because causation cannot be proved. Unlike a road accident causing injury where a driver may be held to blame, people having treatment usually have an underlying condition that requires them to have that treatment, so one is always looking to see what would have happened anyway, even if negligence is proved.
So, for example, how did the infection arise? One has in mind the cases of hospital acquired infection such as MRSA and the difficulty of proving infection unless microbiology expert evidence can sustain such allegations, usually based on an increased risk due to a breach of duty in managing infection control.
More generally as far as causation is concerned, the current thinking seems to be that many deaths involve patients with underlying health conditions. Did they die from coronavirus or the underlying and possibly unrelated health condition, or a combination? Looked at another way, “but for” the allegedly negligent treatment would the patient have died or died when they did? Consider also the impact of the lack of post-mortem examination evidence, as advised by the Chief Coroner presently (on Government advice), and whether that policy has allowed to be waved through, as some think it has, a death from non-coronavirus issues, but which for the sake of expediency has been recorded as a coronavirus death.
Separately, for survivors of coronavirus, as this is a novel disease, is there evidence to prove any links between ongoing health conditions and disabilities that arise from coronavirus? Given the increased focus on “wellbeing” in the present crisis, it stands to reason that some believe there is a strong association between lockdown and mental health, regardless of whether one catches and recovers from the virus or not.
There will be nothing straightforward about these cases.
So why did I refer to record keeping at the start of this article? By now it might have dawned on the reader that in these unprecedented times, following guidance and protocols and recording thought processes and decision making around prioritising treatments (and deferring some of them) will be very important. As a malpractice defence lawyer I would say – crucially important.
Quite apart from demonstrating a reasonable and logical approach to resource management and treatment prioritisation, think of the patient consenting process. You have someone who is keen to have their elective surgery, but – in the context of a higher risk of complications (including the possibility of Covid-19 infection), and potentially poorer surgical outcomes, or death – may have to be faced with information they would not otherwise have had to consider.
This will be the time when the medical profession must hand to the patient the information they need to make a fully informed choice. Record what you have told them and the information leaflets and web pages you have given them or referred them to. Do not “dumb it down”. Let the patient make the choice - don’t make it for them. If you do, or if your records are incomplete, you may find yourself in tiger country.
Without doubt, there will be new challenges. For healthcare providers, and yes for lawyers, and for the courts. I have yet to meet a doctor who did not huff and puff, telling me how busy they are, and the difficulty of making full accurate, contemporaneous (and legible) records. Yet often those conversations are had when the wheels have already come off and we are mulling over the record that was not made. And that is usually before they then tell me they “know” they should have, and that their insurance policy terms require them to.
So my advice? You just read it.
For more information about record keeping, see our 2019 articles:
Record keeping and policy requirements
Medical records hold the key to malpractice cases