COVID and The Duty of Care

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Clinical Negligence Article

08 December, 2020

The NHS have been through a difficult time over the last few months. Back in March we were standing on our doorsteps supporting them, clapping our hands and banging our pans. Our day-to-day lives have continued to be restricted and we are facing a difficult winter where the NHS will be stretched even further.

The pandemic has placed untold pressures on the NHS, staff have been moved away from their usual wards to Support their colleagues in the COVID wards. Nightingale hospitals have been set up, but have not thankfully been fully utilised or needed.

Has the approach to COVID come at the expense of treating other conditions?

Long delays, postponed operations, and an inability to see patients face-to-face have all been affected. Will we look back in the future and wonder whether there has been an overreaction? What will the long term might affect be? Will delays cost more lives than the pandemic? Should we have done more?

This all poses an interesting question on the legal issues surrounding treatment for other conditions.

As the law stands, the legal standard required to prove Clinical Negligence, is the test of what the reasonable Doctor, skilled in a particular area, acting reasonably in treating a particular patients, particular needs or injury, would have done at the time. An orthopaedic surgeon must act as a reasonable orthopaedic surgeon would have done, as should the general practitioner or physiotherapist. That standard is judged by their peers. If their peers take the view that the standard has fallen below that acceptable standard, that would be deemed negligent. If the negligent treatment has caused additional harm a claim may arise.

The unreported case of Pope v NHS commissioning board in 2015 concerned a case of swine flu, where the claimant attended a health centre suffering from various cold and flu symptoms. The nurse failed to check her oxygen levels and advised her to return home and rest. The national guidelines at the time, recommended checking oxygen levels. Unfortunately, the patient deteriorated and was admitted to A&E, where she suffered a cardiac arrest, causing brain damage. The court found that there was a breach of duty on the part of the nurse for failing to measure her oxygen saturation levels. Had she done so, she would have been admitted to hospital or referred to her GP, who would then have admitted her. Had she received the appropriate treatment; she would have avoided the collapse which left her profoundly disabled.

Only time will tell whether the court will take a similar approach to the impact of COVID19 and the difficult decisions the medical profession have had to take in dealing with the pandemic.

Whilst most of the medical profession are unlikely to criticise their colleagues for decisions made around the treatment of COVID, will they be as sympathetic about their colleagues having failed to follow a telephone or video consultation with a face to face, when that might have revealed a bigger problem?

Will it be regarded as reasonable to ignore or overlook the signs and symptoms of other recognised conditions which then lead onto lengthy delays, and in some cases, delays that are going to cost people their lives, particular cancer cases, where an early intervention could prevent it moving from one stage to another?

Is there a tsunami coming our way?

For more information contact John Bennett in our Clinical Negligence department via email or phone on 01254 872111. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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