Coronavirus and clinical negligence

How will the coronavirus pandemic affect clinical negligence litigation in England and Wales?

The Medical Defence Union has prompted widespread media attention by floating a proposal for emergency legislation – which would have to be retrospective to have its intended effect – granting the NHS and its healthcare professionals immunity against clinical negligence claims arising from the period of the Covid-19 pandemic. It is claimed that such a draconian measure is needed because the NHS is likely to face a wave of coronavirus-related clinical negligence litigation. Is that claim justified? If not, what are the likely consequences of the pandemic for clinical negligence?

Context is all

Allegations of negligence are always assessed in context. The fact that the NHS and its staff are having to manage patients during an unprecedented pandemic will make it generally more difficult for claimants to establish negligence.

The core legal principles governing duty of care, breach and causation of harm have been developed and refined through thousands of court decisions over several decades and are sufficiently comprehensive and flexible to cover the myriad of circumstances in which healthcare professionals interact with patients.

The well-known Bolam test of clinical negligence requires the courts consider the circumstances in which the defendants acted, and to hear evidence from other professionals about the standards of care to be reasonably expected in that context. The context includes the demands placed on clinicians by reason of having to care for large numbers of other patients during a crisis.

In Mulholland v Medway NHS Foundation Trust [2015] EWHC 268 (QB) Green J (as he then was) said at [90]: “In forming a conclusion about the conduct of a practitioner working within triage within an A&E Department context cannot be ignored. The assessment of breach of duty is not an abstract exercise but one formed within a context.”

Turner J in Morrison v Liverpool Women’s NHS Foundation Trust [2020] EWHC 91 (QB) at [24] said:

Of course, in the clinical context a balance has to be struck between the needs of any given patient and any other competing professional demands placed upon the clinicians involved … . [Sometimes] the needs of the patient must be deprioritised to allow the clinicians to attend other demands on their time of as a matter of priority.

Although the standard of care expected of a healthcare professional is judged by reference to the role they are undertaking, not by their individual experience and qualifications, the courts will surely take into account the exceptional circumstances in which professionals are being asked to act. The current pandemic places huge strains on the NHS, and the treatment of patients will not always be conducted in accordance with standards that would be expected at other times. Context is all.

The pandemic is not a license to act negligently

Nevertheless, some NHS Trusts and individual healthcare professionals will act negligently during this pandemic, thereby causing avoidable harm to patients. Some negligent conduct will have nothing to do with the crisis; it will just be plainly negligent. In other cases, the courts might find that, notwithstanding the pressures placed upon them by the crisis, a defendant has even so given unacceptably poor care to a patient. The expected standards of care will reflect the stresses imposed on the particular healthcare providers and professionals, but those standards may yet be breached by unacceptably poor care.

Expert evidence

The importance of using expert witnesses who have an active clinical practice may become even more obvious than before. The courts will want to know that an expert witness has properly taken into account the realities of providing care during the pandemic. What were the resource implications for the particular trust or unit? What sort of decisions were having to be made to prioritise? How much time did professionals have to spend with each patient? An expert who does not have that evidence, or who has no direct experience of working in the circumstances that currently prevail, will be less able to assist the court.

Delay

Many procedures and investigations have been postponed because of shortages of NHS staff due to re-allocation or absence. Large numbers of patients may suffer harm due to delays, which would ordinarily be considered unacceptable. However, the resource implications of the pandemic will, I believe, be taken into account by the Court. In a recent, non-negligence case concerning the allocation of NHS resources during the current pandemic, University College London Hospitals NHS Foundation Trust v MB [2020] EWHC 882 (QB), Chamberlain J granted an injunction requiring a patient to vacate a hospital bed. The Judge considered the possibility that the order might breach the patient’s human rights under Article 3 of the European Convention on Human Rights. Mindful of the hard choices to be made as to the allocation of resources, the Judge said this at [57]:

Where the decision to discontinue in-patient care involves the allocation of scarce public resources, the positive duty can only be to take reasonable steps to avoid such suffering … It is difficult to conceive of a case in which it could be appropriate for a court to hold a hospital in breach of that duty by deciding, on the basis of an informed clinical assessment and against the background of a desperate need for beds, to discontinue in-patient care in an individual case…

He was not referring to the common law duty of care, but it is surely true that in a clinical negligence claim the Court would likewise take into account the desperate need for beds, and the exceptional call on resources due to the pandemic.

Backlog in litigation

Unavoidably, a number of trials and hearings have been adjourned due to the public health measures required in response to the pandemic. Some experts are unavailable for conferences or to provide medico-legal reports. The courts and litigators will struggle efficiently to deal with the backlog. To help, parties should be even more collaborative. Pragmatic case management and even greater use of Alternative Dispute Resolution may follow.

A reduction in the number of new claims

As those claims which have not been issued during the crisis are brought forward when restrictions are lifted, there may appear to be a spike in new claims, but in the longer term it may well transpire that fewer clinical negligence claims arise from the period of crisis than would have been expected in “normal” times. Many potential claimants, especially those with more modest injuries, will choose not to sue the NHS. For those who do contact lawyers, they may find solicitors acting under conditional fee agreements to be wary about taking on cases that that could be defended on grounds of limited resources or exceptional circumstances. Claims management companies may seek to generate interest, but the predicted wave of new claims may turn out to be a trickle.