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December 10th 2020

Medical Negligence

How should clinicians be judged for the care provided in the intense pressure of a pandemic?

How should clinicians be judged for the care provided in the intense pressure of a pandemic?

As part of a series, medical negligence solicitor Sharon Lam is sharing her thoughts on the impact of Covid-19 on healthcare in the UK. In part 2 she considers what standard of care can justifiably have been expected of medical professionals under the immense pressure of a pandemic.

As part of a series, medical negligence solicitor Sharon Lam is sharing her thoughts on the impact of Covid-19 on healthcare in the UK. In part 2 she considers what standard of care can justifiably have been expected of medical professionals under the immense pressure of a pandemic.

Every patient in a hospital is owed a duty of care. The issue is, what standard of care should be required and expected in the midst of a global pandemic such as Covid-19?

Facing an unexpected surge in the number of patients, some doctors were asked to work outside their expertise in areas where they may not have the most up-to-date knowledge.

Retired doctors were called back to the wards with final year medical students working alongside them before completing training.

Doctors who have not done general medical or A&E cover may, as a result, have been asked to recognise and treat medical emergencies such as strokes and heart attacks or meningitis.

Given that all of them were asked to work in such challenging conditions, what should be the standard of care to which those doctors will be held?

Case law such as Wilshire v Essex Area Health Authority [1988], in obiter, does make allowance for errors made during so called “emergency or battle conditions” which may require a different assessment of the standard of care.

This is why the court will always look at individual circumstances.

My view is that the flexibility inherent in the legal test does cater for such ‘battle conditions’, so we are not really looking at a different set of standards.

In Mulholland v Medway, the court recognised that those acting in emergency departments ‘do not have the luxury of long and mature consideration’.

Applying the same principle to our current situation, it is possible to deduce that the pandemic put general wards and ICU departments in a similar pressure 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.

The legal test of negligence always invites the court to look at a particular set of circumstances at the time in question. The context is key and it includes the demands placed on clinicians by reason of having to care for large numbers of patients during a crisis.

If a potential act of negligence takes place this week, for example, when the expert comes to examine the case, they will do so in the context of what was occurring this week.

The pressures that the healthcare staff are under together with the unique set of circumstances in which they are currently operating would be considered. This gives the court some flexibility in applying the relevant standard of care.

Guidance is provided by Pope v NHS Commissioning Board (2015), which considered clinical negligence in the context of swine flu.

The patient was unwell and swine flu was suspected. She attended a health centre where she was seen by an experienced nurse. Two days later the patient suffered a cardiac arrest and brain damage.

It was held that the nurse had failed to follow national guidelines to manage all flu-like illness as swine flu and refer the patient to hospital. Had the patient been admitted, she would have been treated appropriately for swine flu and would have avoided the cardiac arrest.

This case shows 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 is therefore worthwhile to check whether or not, in deploying resources and staff, and in deciding who to give priority for treatment, whether the trust had followed the relevant NICE guidelines issued following the pandemic.

These guidelines cover a wide range of issues, including patients requiring critical care, kidney dialysis and cancer treatment. Specifically, they require that patients admitted to hospital should be assessed as usual for frailty “irrespective of Covid-19 status”.

Any deviation from these guidelines without good reasons may therefore be criticised.

In part 3 I discuss the issue of clinicians being recalled to hospital wards during the pandemic and whether they should be given any extra discretion for any mistakes made.

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