Medical Negligence and the coronavirus pandemic

Should practitioners be provided with immunity from negligence claims during the crisis?

The coronavirus pandemic is the healthcare crisis of a lifetime. It is a huge medical challenge which raises many legal and ethical dilemmas and many questions are being asked. How far should individual liberties be restricted in order to protect public health? What does the pandemic reveal about social and regional inequalities in healthcare, and should regulations on standards in healthcare be lowered in light of the pandemic? I don’t propose to answer all of these questions here, but to share some thoughts on issues I see as relevant to our work in clinical negligence.

Impact on our clients

During these difficult times of battling COVID-19, we stand in solidarity and support of all the key workers keeping the nation operating, and in particular we salute the heroes saving lives on the frontline of healthcare. Every one of us is impacted personally and professionally, with us also seeing the impact it is having on our clients and the families we support.

One of the difficulties for many of our clients is the isolation they already felt living with life-changing disabilities or coping with bereavement. For many of them they were already vulnerable, and these uncertain times have only added to their anxieties and increased their personal risks.

Another concern is that we are hearing reports of less people attending hospital with genuine healthcare issues which need to be addressed. The British Heart Foundation are reminding people to seek help with cardiac problems. There is a worry that people are not reporting symptoms of cancer. Prevention is better than cure, and we know from experience that the sooner something is treated, the better the outcome.

Legal questions for doctors

At the same time, one of the most difficult ethical questions for medics has been the potential prioritisation of different patients, all seriously ill, in situations where there were fears over insufficient medical resources. The situation is developing continuously. It currently seems that we are hopefully over the worst of the spike, and remarkably the intensive care units appear to have weathered the worst of the storm, although the battle continues. Doctors should not have to think about legal dilemmas at this time.

In the Medical Negligence team at Clarke Willmott, our speciality is representing patients, and the families of patients who have died, in cases where things have gone seriously wrong with treatment. We investigate whether someone’s disabilities or death have been caused by negligent failures in the care they received. As we are patient focused, we frequently act against NHS Trusts. We also understand that unfortunately errors are sometimes made, especially at times when it increasingly stretched and under pressure. However, these errors are not necessarily negligent in law.

To ensure that both patients and the NHS are protected, it is vital to understand what we mean by negligence; something which is often misunderstood in society, and even in huge swathes of the media.

Reminder of the legal test for clinical negligence

I regularly train doctors, GPs, NHS managers and other healthcare professionals on the legal test for medical negligence. They are often surprised, and reassured, to know how hard it actually is to be considered negligent.

The test is that no responsible practitioner would have done the same thing. In other words, you must have done (or failed to have done) something that none of your peers would deem acceptable. This is a high test indeed, and rightly so. The test has been good law since it was laid down over 60 years ago in the case of Bolam v Friern Hospital Management Committee [1957] and is known as the ‘Bolam test’.

The Bolam test can only be proven with independent expert evidence from a healthcare professional working in the same field of medicine. For example, if we were concerned about allegedly negligent nursing care, we would need an independent expert nurse to examine the facts and medical records. We would then ask them to report on whether what happened was so bad that no other nurse would have acted in the same way. The crucial thing to note is that healthcare professionals are judged by their peers and not by lawyers. It is only if the expert working in the same field identifies that the Bolam test has been met that a negligence case can be brought.

The test is a high hurdle for patients if they are considering bringing a claim. This should be reassuring for clinical practitioners, if they apply the Bolam test to their work.

A huge benefit of the Bolam test is that it moves with the times. Rather than the law setting in stone how treatment should be, it relies on those working in the field to tell us what the standards are at any given time. Clinical practise and medical understanding develops daily and so too does the test. This is because when an expert examines a set of circumstances to assess whether there has been negligence, they will look at the current state of play in healthcare at that time.

Bolam test and coronavirus

What relevance does this have today? Well, we are in the midst of a pandemic and the health service is facing its biggest ever burden. There have been unsubstantiated rumours predicting a flurry of cases to come out of this crisis. It is too soon to speculate on this, and in my view, not appropriate. It was therefore alarming to read that the Medical Defence Union (MDU), one of the bodies who indemnify independent doctors, is proposing there should be blanket immunity for doctors throughout the pandemic. The MDU represent GPs and specialist doctors treating patients in private clinics, not those treating patients as part of NHS Hospital care.

The test of negligence always applies to the set of circumstances at the time in question. This has not changed. If a potential act of negligence takes place this week, in 2020, when the expert comes to examine the case, they will do so through the prism of what was occurring this week. They will consider the pressures that the healthcare staff are under and the unique set of circumstances in which we are currently operating.

I would therefore argue that the test of negligence already provides sufficient protection to prevent unjustified claims being brought forward. This suggestion of blanket immunity immediately felt misplaced for a number of reasons:

1. Firstly, all doctors operating within the NHS are protected by the liability of their employer. They cannot be ‘sued’ as individuals as they are indemnified by the government through the NHS Trust that they work for. This is the usual situation and is not changing.
2. There is already sufficient protection enshrined in law, as mentioned above. The expert examining the case will be well aware of the current situation and apply this when they are considering whether the actions were reasonable and what impact they have had.
3. The law in this area is well-established and should not be easily eroded or changed in a knee-jerk reaction to the current situation.
4. For good reasons, patients should be protected from negligent harm. If a patient happens to fall victim to negligence during these dates, irrespective of the fact it coincides with a pandemic, they retain the right to be able to investigate this matter. If they can prove negligence caused them harm, they are entitled to legal redress. This is not the time to erode patient rights.
5. As a fellow professional, I maintain that all of us should be held to account for our actions. Professionals should not be seen to be “above the law” and able to act with guaranteed immunity. If the legal profession was facing a crisis, it would not be the time to suggest solicitors could act with impunity.
6. Although the majority would not change their practice, there is a real danger that some staff would be able to act in the knowledge that there would be currently no accountability for their actions or omissions. Surely this is a dangerous state of affairs and one that nobody who cares about patients wants to see.

There are also practical concerns about how a blanket immunity would apply and to which areas of healthcare. Should it include standards of surgery, obstetrics, other areas of medicine which are not directly treating respiratory disease, but feeling the knock-on effect of resources being redeployed? Should it apply to healthcare workers outside of a hospital setting, for example those in our communities?

What about redeployed doctors?

Another ethical and legal question raised is whether doctors who have been redeployed outside of their normal duties could be liable for the mistakes they make. The usual position was summarised by the Court of Appeal in the case of FB v Princess Alexandra Hospital NHS Trust [2017] where the court confirmed that a doctor would be judged by the standard of skill and care appropriate to the role they were filling. If a doctor does not have the requisite degree of skill for the role, the hospital authorities will be liable for putting the doctor in a position that was too advanced for their abilities.

The issue has not yet been tested within the context of a pandemic. In terms of the fears of individual doctors, they can be reassured that they would not be personally liable for negligence in a hospital context, it would be the Trust as a whole who respond to the claim, and the examination of the doctor’s actions would be subject to the same protections enshrined in the legal test set out above.

Potentially if a case came to court arising out of these circumstances, within the current crisis, the facts would be distinguished from the FB case in any event, as a reflection of the unique challenges we currently face and as a measure of the sympathy and appreciation that we all feel for those so bravely and brilliantly battling on the frontline.