Two big questions answered on Covid-19 clinical negligence claims
by Matthew Best, Senior Underwriting Manager at Temple Legal Protection
(Estimated reading time: 6 minutes, 22 seconds)
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 believe that in relation to Covid-19 clinical negligence claims themselves, no we will not. However, we may be presented with high volumes of case numbers in relation to 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 advised is being considered. I have to say that I find this idea astonishing. Surely by introducing a ‘Swedish-style’ model it will increase the amount of cases that compensation is paid out on? 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 breach of duty wasn’t proven, but an error made, those cases would likely settle under this ‘no fault scheme’. I find the proposal 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
1. 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 being forced to use inexperienced staff to treat patients during a pandemic.
The Government does seem alive (and dare I say) well-prepared for a rise in coronavirus-related medical negligence claims; this is apparent from provisions within the Coronavirus Act 2020. Clauses 10 to 12 of the Act include the power to provide indemnity cover to healthcare workers and others carrying out NHS activities connected to the Covid-19 pandemic.
These clauses 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.
2. What standard of care should be required and expected in the midst of a global pandemic such as Covid-19?
I have addressed this question in ‘phone calls with a number of clinical negligence solicitors. The views shared absolutely recognised that hospitals faced a massive increase number of patients. Also 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 the discussions on this topic was as expected – the court will always look at the individual circumstances of a case. The legal test of negligence always invites the court to look at the circumstances at the time in question. 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 , which does make 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 ICU 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 also add 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. For example, a patient showing flu-like symptoms, who suffered a cardiac arrest and subsequent brain damage, 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.
I will end by acknowledging that 2021 will certainly be another challenging year but take comfort in knowing that Temple Legal Protection is behind you. As you can see above, we have been in dialogue with many of our partner law firms and will continue to encourage topical debate throughout the coming months to ensure the needs of you and your clients are met.
We are aware that on top of the issues surrounding litigation in light of the pandemic, there are also economic concerns for your law firm you will doubtless already be considering.
Right now, clinical negligence solicitor customers rely on Temple’s fully delegated authority solution to both ATE and disbursement funding. We understand that funding disbursements are a huge drain on cash flow.
We are also alive to the fact that delays in costs processes can mean that costs and interest continue to accrue. The Temple disbursement funding solution can ease that burden, it is quick and simple to administer. Relationships with us are built on trust, we do not tie you into certain suppliers – you’re the experts, we allow you to get on with running your clients cases. In addition you don’t have to waste time and money seeking authority to issue proceedings, rejecting Part 36 offers or worry whether disbursements exceed certain limits.
To find out more about our New Deal for ATE insurance and disbursement funding, please call me on 01483 514 804 or email email@example.com
Matt has an insurance background and joined Temple in July 2011 having worked for 4 years in a leading insurance company where he was dealing with personal injury work.
Matt’s experience allows him to undertake a key role in Temple’s ATE insurance personal injury and clinical negligence teams. He also participates in the assessments of delegated schemes that Temple provide with the objective of helping our customers make the most beneficial and appropriate use of ATE insurance.
He has started studying for this CII exams which he will sit in the near future, which he will then use to develop himself, further into the company in order to provide Temple’s customers with the excellent service they expect.
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