COVID-19 and clinical negligence litigation, law reform

The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the University of Birmingham

“Pre the pandemic, the NHS has seen record levels of clinical negligence claims and costs, when it is all over, there is nothing to indicate that patients will cease to bring claims and buck the historical trend.”

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We need to resist calls to give legal immunity from clinical negligence claims to doctors and others during the COVID-19 pandemic. The courts and judges should be trusted to deal with such claims fairly and patients’ rights to claim for negligence respected. Faith in our civil justice compensation system should be maintained during COVID-19.

With the COVID-19 pandemic we are all now living in challenging and uncertain times. All sorts of new essential measures are taking place within our NHS to make sure that we can properly handle the COVID-19 crisis. NHS staff are working heroically, and some are tragically losing their lives in the battle against the virus. When the COVID-19 pandemic dust eventually settles people will begin to reflect on what has happened to them and their loved ones during the crisis, this is basic human nature. At the present time events are moving so quickly there does not seem to be time for proper and deep reflection.

Reflection

In time however some patients may feel that they or their loved ones were treated improperly, negligently during the crisis and seek redress, raising the spectre of litigation. NHS staff may also feel prompted to sue their employers for failing to take reasonable care to ensure their health and safety at work. Such legal claims would be complicated and there are established legal principles decided over many years which could help frame actions if they are decided on.

In COVID-19 we have initiatives such as the nurses and doctors returning from retirement, nursing, medical, students, volunteers going to the NHS. These are all innovative and good ways to help the current situation. There are however legal implications involved here. A patient might subsequently argue that a training nurse or doctor negligently caused them injury through their inexperience, they missed for example some key symptoms or did not properly refer them to a more senior colleague or essential tests did not take place.

Pre the pandemic

Pre the pandemic, the NHS has seen record levels of clinical negligence claims and costs, when it is all over, there is nothing to indicate that patients will cease to bring claims and buck the historical trend. The National Audit Office (NAO) has said that the cost of clinical negligence claims is rising at a faster rate year-on-year, than NHS funding. The NAO state the rise in clinical negligence costs is due to increases in average claimant damages and legal costs, and to a higher volume of claims. The overall cost of claims increased by more than four times between 2006-07 and 2016-17.

NHS Resolution manages litigation claims on behalf of NHS Trusts and other bodies and calculate that in 2018/19 the, ‘cost of harm’ in the NHS was approximately £9 billion. They also made a balance sheet provision of £83.4 billion for claims received and those no yet received but expected in their 2018/19 annual report and accounts.

The money spent on clinical negligence claims prior to COVID-19 is a major concern. The Government and the NHS are currently engaged with a raft of positive and promising initiatives to enhance patient safety and to understand why patients complain and litigate.

COVID 19 and claims

The Medical Defence Union (MDU) have recently called for a national debate on protecting the NHS from COVID-19 clinical negligence claims noting the rising trends.

The MDU acknowledges that their members are working under tremendous pressures, taking difficult decisions in very challenging conditions. They want their members to be able to practice without a fear that they will be unfairly judged in the months and years ahead should court claims result. Also, that any compensation paid will be a drain on NHS resources and disastrous for NHS staff morale. Claims will also create an additional burden on taxpayers. There will be economic consequences from the pandemic.

Time to resist this call for national debate

The COVID-19 pandemic should not be piggy backed in this way. This is not the time to call for what amounts to root and branch tort law reform. The call seems to omit the patient’s right to claim compensation for negligent injuries caused to them by those who were meant to care for them. Clinical negligence in practice is a hard matter to establish and cases are not brought lightly.

English common law in the area of clinical negligence can accommodate the fact that NHS staff in COVID-19 are practicing in effect, in a warzone. There are cases, judicial precedents which can be applied to determine the standard of care expected of trainee doctors and nurses, para medics, volunteers and those operating outside their practice areas in COVID-19.

There is no need to give legal immunities here as when the dust does eventually settle the courts and judges should be trusted to do their job and not be under-estimated. Doctors and others will not be unfairly judged. Judgements in past reported clinical negligence cases show how carefully complex clinical negligence issues are considered by the courts.

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