December 11th 2020

Medical Negligence

Should there be extra discretion for mistakes made by clinicians called back to hospital wards or those working beyond expertise during Covid-19 response?

Sharon Lam

Sharon Lam

Solicitor, Clinical Negligence

Should there be extra discretion for mistakes made by clinicians called back to hospital wards or those working beyond expertise during Covid-19 response?

Medical negligence solicitor Sharon Lam continues to share her thoughts on the impact of Covid-19 on health care in the UK. In part 3 she considers by what standards medical professionals called back to wards, and those who had to work beyond their expertise during the peak of pandemic, should be judged.

Medical negligence solicitor Sharon Lam continues to share her thoughts on the impact of Covid-19 on health care in the UK. In part 3 she considers by what standards medical professionals called back to wards, and those who had to work beyond their expertise during the peak of pandemic, should be judged.

A key question to be considered should medical negligence claims arise from the Covid-19 outbreak will be should the Bolam test, under which a medical professional must show that they acted in a way that a responsible body of medical professionals in the same field would regard as acceptable, still apply during a pandemic?

The law of tort does not generally make allowances for whether a tortfeasor is experienced or a beginner.

This was demonstrated in the case of Nettleship v Weston [1971] 2 QB 691, in which a learner driver was found to be expected to meet the same standard as a reasonable qualified competent driver in a personal injury case.

For a clinical negligence claim to be established, the healthcare professional must fail to meet the standard of a responsible practitioner in that discipline or specialism.

A medical professional is not guilty of negligence if they have ‘acted in accordance with a practice accepted as proper by a responsible body of clinician skilled in that particular art.’

Whether it is a retired doctor or final year medical student, their standard would be measured against a reasonable practitioner properly trained in that discipline or specialism.

Therefore, a clinician’s experience or qualification is not relevant when considering the standard of care owed.

In Wilsher v Essex Health Authority [1987] Q.B. 730, it was held that the length of experience of the clinician was not relevant, and the duty of care related not to the individual, but to the post they occupied.

Jackson LJ noted in FB v Rana that the standard of care applicable to the ‘relatively inexperienced’ senior house officer (SHO), who had been acting in the A&E department, was that of a reasonably competent SHO working in that department.

And in Darnley v Croydon Health Services NHS Trust 2018, the Supreme Court again upheld the principle that the standard of care should be based on the role being performed.

In this case, a receptionist wrongly advised a patient of the length of the A&E waiting time. The court held that “the standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care.”

The law thus requires a standard no higher, and no lower, than a reasonably competent healthcare professional of the role which is being fulfilled.

A hospital is liable if the doctor whom it puts into a particular position does not possess (and therefore does not exercise) the requisite degree of skill for the task in hand. The law is therefore established that the clinician must be competent for the post they occupy, and there are good policy reasons for this.

A patient should be given certainty that their treatment by a type of doctor will be performed to a certain standard, regardless of which particular doctor within a particular department performs it.

The fact that a clinician was inexperienced does not diminish the required standard of skill and care a patient is expected to receive.

My view is that although we would not expect a lessening of the normal standard, the standard would, as usual, depend entirely on the particular circumstances, and these doctors would be judged against what a responsible clinician would have done during a health crisis.

Even in these times of extreme pressure, I can’t imagine the Courts will relax these long established principles, which achieves a balance between the interests of society and fairness to the individual clinicians.

In practice, it is unlikely any NHS trust would deploy staff for duties which they are not sufficiently skilled. On top of this, a series of ‘Covid-19 rapid’ guidelines were introduced, some of which are specifically designed for doctors acting outside their own area of specialism.

Some have argued that the desperate circumstances should be reflected in the standard of care applied to hospitals and medical professionals working in response to the pandemic. This variation is hinted at by Mustill LJ in Wilsher v Essex Area Health Authority, albeit obiter.

“Finally, it might have been said that, if the junior doctors did not have sufficient skill or experience to provide the special care demanded by such a premature baby, the defendants were at fault in appointing them to the posts which they held”.

“Again, I accept that full allowance must be made for the fact that certain aspects of treatment may have to be carried out in what one witness called ‘battle conditions’. An emergency may overburden the available resources, and, if an individual is forced by circumstances to do too many things at once, the fact that he does one of them incorrectly should not lightly be taken as negligence.

“Here again, however, the present case is in a different category, for none of those accused of negligence who were called to give evidence on their own behalf suggested that, if mistakes were made, this happened because their attention was distracted by having to do something else at the same time, or because they had to take a difficult decision on the spur of the moment.”

It is possible that NHS Trusts may seek to argue that the clinician should be judged with reference to their qualifications and experience.

Only time will tell how these defences are going to be considered by the court.

In part 4, I’ll be concluding my series of articles on the pandemic and its impact on healthcare, and considering the future threat to patients of Covid-19 infection when having elective surgery.

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