Lionel Stride, Barrister at Law for Temple Garden Chambers, outlines how the current pandemic could expose medical professionals to clinical negligence claims. Here Lionel also outlines what guidance is out there to help clinicians and health providers through this difficult period.

As medical professionals come under increasing pressure while this pandemic continues to spread, mistakes will inevitably occur. There is thus unique exposure to clinical negligence claims.

It is apparent from provisions within the Coronavirus Act 2020 that the Government foresaw exactly this situation. Clauses 10 to 12 of the Act include the powers to provide indemnity coverage for clinical negligence of healthcare workers and others carrying out NHS activities connected to the Covid-19 pandemic. These clauses are intended as a safety net for services that fall outside pre-existing indemnity arrangements. Perhaps even more telling are clauses 28 to 29, which remove the requirement that inquests must be held into coronavirus deaths, as is required by law for other notifiable diseases.

The provisions outlined above are necessary, in no small part, due to the intended drafting in of final year medical and nursing students, along with retired medical professionals, to bolster the ranks of frontline clinicians. Reports of precise numbers vary, but thousands of nurses and doctors have come out of retirement to help manage the pandemic. These numbers are likely to grow. The most pressing question, from a legal perspective, is what standard of care will be applicable to these recruits, whose training has either not been entirely completed or is potentially out-of-date.

Adjusting standards?

Is there now a lower standard that reflects the nature of the medical emergency and that allows for this inexperience or lack of recent clinical experience respectively of these recruits? FB v Princess Alexandra Hospital NHS Trust (2017), which concerned the negligence of a junior doctor, suggests that the answer is no. The fact that the clinician was inexperienced did not diminish the required standard of skill and care. What is less clear is how this principle will apply to the 750,000-strong army of NHS volunteers called for by the Health Secretary. Although they are not claiming to offer, nor are they expected to have, specific medical expertise.

The context in which clinical negligence litigation is most likely to arise is the impact of the coronavirus pandemic on broader clinical decision-making

Lionel Stride, Barrister at Law, Temple Garden Chambers

The coronavirus pandemic therefore presents unique clinical challenges. Firstly, diagnosis of the virus might prove contentious as testing has so far been restricted to patients in hospital with clear flu-like symptoms. Furthermore, the clinical signs of coronavirus and the severity of them can vary markedly from one infected person to the next. There is therefore a risk of missing a diagnosis in the case of a patient with initially mild symptoms who later develops severe complications.

However, the context in which clinical negligence litigation is most likely to arise is the impact of the coronavirus pandemic on broader clinical decision-making. That is, the impact on non-virus-infected patients. By what metric should medical professionals prioritise one patient over another in circumstances where demand for intensive care resources is stretched?

Notably, NICE has produced guidelines, relating to patients requiring critical care, kidney dialysis and cancer treatment. All of which propose that patients admitted to hospital should be assessed as usual for frailty “irrespective of Covid-19 status”.

Nevertheless, it is difficult not to ponder the medico-legal questions thrown up by reports from Italy, where older patients with serious pre-existing conditions have been turned away in favour of younger coronavirus patients. Creative solutions need to be explored, such as offering treatment at different locations or taking longer breaks between treatments. Moreover, even if at-risk individuals, such as cancer patients, are treated, clinicians will then need to consider the risk of these patients’ conditions deteriorating through exposure to the virus due to their weakened immune systems. Consequently, the decision to treat a vulnerable patient who later dies from coronavirus that is contracted during the period of his/her hospitalisation may also be criticised.

What guidance is there already?

Fortunately, although these are undoubtedly unique times, some guidance is provided by Pope v NHS Commissioning Board (2015), which considered clinical negligence in the context of swine flu. The patient in this case fell unwell and believed that she had contracted swine flu. She attended a health centre where she was seen by an experienced nurse who examined her and advised her to return home and rest. Two days later the patient was admitted to A&E, where she suffered a cardiac arrest. She was resuscitated but had sustained brain damage which left her profoundly disabled. Investigations revealed that she had swine flu, which was complicated by pneumonia.

The patient subsequently pursued the NHS for medical negligence. At trial, the Court ruled that there had been a breach of duty and that this was causative of the claimant’s brain damage. Under national guidance, any flu-like illness was to be managed as swine flu. Had the nurse followed this guidance then she would have measured the patient’s blood saturation levels, found them to be low and would then have referred and admitted her to hospital. Had the patient been admitted, she would have been treated appropriately for swine flu and would have avoided the cardiac arrest.

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. It must be remembered, however, 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.

Ultimately, we can all appreciate the crucial role that medical professionals will play in managing the coronavirus pandemic. However, Pope illustrates that, even in times of crisis, clinicians must always strive to follow the relevant guidance and that serious ramifications might occur when this is not the case. The wise choice is perhaps for NICE guidelines to be put up on hospital notice boards or, better still, emailed to all those concerned to remind clinicians under pressure of the correct approach to adopt when seeing vulnerable patients with or without the coronavirus.

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