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Covid-19: Should emergency measures excuse medical negligence?

The extra demand and pressure placed on the NHS because of the COVID-19 outbreak has led to emergency measures within the health service. Retired doctors have been called back into service, while final year medical students have started work early and in primary and secondary care, doctors are working outside their areas of expertise.

Taking this emergency response into account, the Medical Defence Union (MDU) says doctors should be spared from the stress and anxiety of medical negligence claims following the pandemic.

The organisation, which provides legal support to doctors, nurses, dentists, and other healthcare workers, has raised concerns that; "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 requires people to work outside their speciality and beyond their experience will also be forgotten."

The organisation's concerns echo wider national newspaper reports. An article in The Guardian states the "NHS could be faced with billions of pounds of medical negligence claims if it does not grant some form of legal immunity to medics risking their lives during the pandemic, the government has been warned".

The MDU's viewpoint also references that several states in the US have implemented laws that provide healthcare professionals and hospitals with "immunity from civil liability for any injury or death alleged to have been sustained because of any acts or omissions undertaken in good faith".

While it can seem logical to be empathetic to such proposed measures of immunity, taking this approach does raise the question about patient safety. It could be construed that healthcare professionals made fatal mistakes because of the conditions of an emergency or extreme situation. Errors would be effectively excused by good intentions, meaning the importance of patient safety is ignored.

Granting immunity to medical liabilities during the pandemic could also cast doubt on patient safety in the future. Although the pandemic is unprecedented, medical professionals may also find themselves in other emergencies, where they are faced with uncertainties. In such instances, would doctors and nurses be able to claim immunity because they weren't familiar with the circumstances, which they found themselves in?

Before calling for immunity, it is also worth considering that only a very small minority of potential medical claims will reach the MDU or NHS Resolutions (who deal with claims against the NHS) and then it still needs to be established that the care was negligent. This is done by demonstrating the following:

1. It has to be established that the standard of treatment provided has fallen below the standard expected of a reasonably competent doctor dealing with the patient's particular condition. Put simply, if a patient was in a room with a number of doctors practicing in the same area as a doctor deemed to have acted negligently, there would have to be general consensus amongst the other doctors that each of them would have acted differently during the patient's treatment, for any level of negligence to be considered.
2. If it can be established the treatment was below standard, the claimant would then have to show that the poor treatment has caused extra pain, suffering, loss and damage over and above that which they may have experienced even if they had received the appropriate treatment.

This process is very onerous on a potential claimant.

The debate around immunity should also consider other steps that are being taken during the pandemic. The government has promised to cover the cost of any future legal actions by providing indemnities and a new scheme, Clinical Negligence Scheme for Coronavirus (CNSC), has already been launched by NHS Resolution to indemnify healthcare professionals for any clinical liabilities arising from the pandemic and has been established under the Coronavirus Act 2020. It has been designed to provide cover for the "new contracts being put in place for healthcare arrangements to respond to coronavirus such as those with the Independent Sector and organisations supporting testing arrangements".

In its announcement, the MDU admits that doctors should be accountable for their actions and confirmed that the General Medical Council (GMC) has already recognised that different considerations will need to be applied when investigating complaints. Given the circumstances of the pandemic, this seems a more constructive course of action for both patients and medical professionals and raises less question of patient safety being disregarded because of an emergency situation.

If you have any concerns about your medical care and would like to discuss the matter further, then please do get in touch with a member of our specialist clinical negligence team on 01254 872 111.

For more information contact Leonie Millard in our Clinical Negligence department via email or phone on 01254 770517. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Clinical Negligence department here

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