Nigel Poole QC considers the question: how will the Coronavirus pandemic affect clinical negligence litigation in England and Wales?

It may seem insensitive even to address this issue whilst the NHS and healthcare professionals are doing such amazing work, risking their own lives and health, on behalf of the nation. However, those same professionals may have their concerns about where they stand in relation to possible claims, and many patients will be concerned about their own healthcare. I wrote my book, Clinical Negligence Made Clear as a guide for patients and professionals. Both groups, and lawyers, need to be aware of the impact of clinical negligence on healthcare provision. Now is not the time to close our eyes and wish for the best.

The Medical Defence Union has floated a proposal for emergency legislation, presumably with retrospective effect, granting the NHS and its healthcare professionals immunity against any claim arising from harmful, negligent management and treatment during the period of the crisis. To be clear, this would mean that conduct which even in the current circumstances were considered unacceptable by all responsible bodies of medical professionals, could not be the subject of a claim. In fact the government has guaranteed an indemnity for all healthcare professionals. That is not a grant of immunity against the possibility of being sued: it means that if sued, their liability will be covered. Given that assurance, for the purposes of this post I shall assume that the government has no intention of passing legislation of the kind suggested by the MDU. I shall also focus on individual clinical negligence claims against NHS bodies, not on the prospects for other claims that have been mooted including group actions suing the government in damages, judicial review challenges, claims against the NHS as a whole, or claims against the Chinese state or the World Health Organisation.

What then is the likely impact of the crisis on clinical negligence claims?

1. Context is All

The usual principles of clinical negligence will continue to apply to all management and treatment over the period of the crisis. In general, the effect of the pandemic on the NHS – its implications for the allocation of resources – will make it more difficult for claimants to establish negligence.

Clinical Negligence is a branch of the common law. It has been developed and refined over decades as thousands of cases have come before senior judges for trial or appeal. It is the product of many years of experience and learning. Every new case arises out of its own unique set of facts. The beauty of the common law is that it can be applied to an infinite variety of circumstances. The key questions apply to every case: was there a duty of care, what was its scope, was there a breach of duty, did it cause injury, loss and damage? The legal principles that apply when answering those questions are sufficiently comprehensive and flexible to cover the myriad of circumstances in which healthcare professionals interact with patients.

The well-known Bolam test of clinical negligence requires the courts to have regard to how the conduct of a healthcare professional measured up against the standards of responsible bodies of relevant professionals. The standard expected is not one formulated by a judge divorced from the realities of the front line care of patients. Judges hear evidence from expert witnesses who will speak to the context in which a clinician, or their unit, were working. That context includes the demands placed on clinicians by reason of having to care for large numbers of other patients and the demands on the hospital or unit at the relevant time.

In Mulholland v Medway NHS Foundation Trust [2015] EWHC 268 (QB) Green J (as he then was) said at [90]:

In forming a conclusion about the conduct of a practitioner working within triage within an A&E Department context cannot be ignored. The assessment of breach of duty is not an abstract exercise but one formed within a context – which here is that of a busy A&E where the task of the triaging nurse is to make a quick judgment call as to where next to send the patient”

Turner J in Morrison v Liverpool Women’s NHS Foundation Trust [2020] EWHC 91 (QB)  at [24] said:

Of course, in the clinical context a balance has to be struck between the needs of any given patient and any other competing professional demands placed upon the clinicians involved. Sometimes, the seriousness and urgency of a patient’s presentation and the absence of any conflicting factors will mandate a swift and decisive response. On other occasions, it is equally obvious that the needs of the patient must be deprioritised to allow the clinicians to attend other demands on their time of as a matter of priority”.

The current pandemic places huge strains on the NHS. It is not a case of “business as normal” and the treatment and management of patients will not always be conducted in accordance with standards that might be expected at other times. Context is all: the present context will be of great significance when the courts weigh up whether a Trust or a professional has acted negligently during this period.

2. The pandemic is not a licence to act negligently

On the other hand, some patients will be negligently injured during the period of this pandemic. NHS Trusts or individual healthcare professionals will act negligently. Some negligent conduct will have nothing to do with the crisis. A histopathologist who inexcusably reports a biopsy as non-malignant when it had clear signs of malignancy, will have been negligent whether the error was made during the pandemic or at any other time.  In other cases the courts might find that, notwithstanding the pressures placed upon them by the crisis, a defendant has even so given unacceptably poor care to a patient, thereby causing them unavoidable injury. The expected standards of care will reflect the stresses imposed on the particular healthcare providers and professionals, but those standards may yet be breached by unacceptably poor care.

3. Expert Evidence

The importance of an expert witness having an active clinical practice may become even more obvious than before. The courts will want to know that expert opinion about the standard of care offered by a provider during the pandemic, has properly taken into account the realities of providing care at that time. What were the resource implications for the particular trust or unit? What sort of decisions were having to be made to prioritise? How much time did professionals have to spend with each patient? An expert who does not have that evidence, or who has no direct experience of working in the circumstances that currently prevail, will not be able to assist the court as well as another expert who does have that information and experience.

4. Delay

Professor Chris Whitty, the Chief Medical Officer for England, has repeatedly talked about the indirect deaths that the pandemic will cause.
These are not deaths due to complications of the virus itself, but deaths due to the consequential effects of the virus on resources within the NHS. It was feared that if the NHS were overwhelmed by having to deal with virus patients, then this might have a catastrophic effect on its ability to treat other patients. An NHS crisis of that magnitude has been avoided so far, but large numbers of patients have had procedures and investigations postponed so as to free up resources to handle patients with the virus. Healthcare professionals have become sick, some have died, and that has had an adverse effect on capacity within the system to deal with all patients.
It seems that many fewer patients are presenting to the NHS with non-virus related conditions than would normally be expected. If a patient does not present to a GP or A&E because of the pandemic, then that cannot give rise to a negligence claim – it is a choice, of a kind, made by the individual. Suppose, however, that a patient does present to a GP with a breast lump, but referral to a breast clinic is delayed because of the crisis. Suppose that delays in diagnosis of that patient’s breast cancer can be proved to have resulted in the need for a mastectomy rather than a lumpectomy. Would the patient have a valid claim? The clinical need to be swiftly investigated and treatment would be the same irrespective of the pandemic. However, the resource implications of the pandemic would, I believe, be taken into account by the Court. What would have previously been an inexcusable delay in the system, might be regarded as acceptable in the current circumstances. In a recent, non-negligence case that arose out of a decision on allocation of resources during the current pandemic, University College London Hospitals NHS Foundation Trust v MB [2020] EWHC 882 (QB), Chamberlain J granted an injunction requiring a patient to vacate a hospital bed. The Judge considered the resource implications of the present crisis and the possibility that the order might breach the patient’s human rights including any positive obligations on the state under Article 3 of the Convention. The court was very mindful of the hard choices to be made as to the allocation of resources even when they might have adverse consequences for an individual patient. He said this at [57]:
Where the decision to discontinue in-patient care involves the allocation of scarce public resources, the positive duty can only be to take reasonable steps to avoid such suffering: cf R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, [13]-[15] (Lord Bingham). It is difficult to conceive of a case in which it could be appropriate for a court to hold a hospital in breach of that duty by deciding, on the basis of an informed clinical assessment and against the background of a desperate need for beds, to discontinue in-patient care in an individual case and, accordingly, to require the patient to leave the hospital.”

The duty to which he was referring was not the common law duty of care. Nevertheless it is surely true that the court would take into account the desperate need for beds, and the extreme call on resources due to the pandemic, when considering whether a healthcare provider has been negligent in failing to provide an investigation or appointment, or to begin treatment within what might usually be regarded as an acceptable time. Sadly, many patients will suffer because others have had to be prioritised to serve the greater good. Negligence and human rights law are often closer bedfellows than many realise. Both often require a balancing exercise of competing claims to determine whether a certain decision or course of action was “reasonable” or “proportionate” –  an approach similar to a utilitarian calculus.

5. Backlog in Litigation

Unavoidably, a number of trials and hearings have been adjourned due to the public health measures required in response to the pandemic. Some experts cannot attend conferences or examine clients and produce medico-legal reports because their attention is focused entirely on dealing with the pandemic. Even before the pandemic it could take a very long time for a claim to progress through the court process. The courts and litigators will struggle efficiently to deal with ongoing cases and the backlog of delayed cases. One way in which the courts can be assisted will be for parties to be even more collaborative. Pragmatic case management and, perhaps, even greater use of  Alternative Dispute Resolution may follow. Use of conferencing technologies such as Zoom may make litigators more efficient. However, there will be a backlog and it will need to be addressed.

A Reduction in the Number of New Claims

My prediction is that the Coronavirus pandemic will lead to a reduction in the number of clinical negligence claims below the level that would otherwise have been expected. Firstly, there may be a tendency of patients, especially those who have suffered more modest injuries, not to bring claims because of their feelings about the way the NHS has coped with this crisis. Anecdotally solicitors have not told me of a rush of patients coming to their doors to complain about negligence arising out of the pandemic. Any assertions that the crisis will result in a glut of claims should be treated with extreme caution. Secondly, it will be harder to establish negligence because the courts will take into account the extreme circumstances that now prevail, including the call on scarce resources to tackle the pandemic. So, it is probable that fewer claims will be pursued than would otherwise have been the case because solicitors will be wary of taking on those claims under conditional fee agreements.

Since, typically, claims are usually brought, if at all, at between two to three years after the events in question (although it can be many years later in cases involving babies and young children) any reduction in the volume of claims might be noticed in 2022 and beyond rather than immediately. There may well be something of a pause in new claims being issued during the pandemic, then an upsurge due to the backlog, but ultimately, I predict, fewer claims against the NHS will arise from acts and omissions during the period of the crisis than would otherwise have been expected.

Healthcare professionals should be aware that the principles of clinical negligence are designed to be flexible and to apply to the particular context of each case. It is difficult to imagine many more significant contexts than the present crisis. The Courts will assess the standards of care to be expected accordingly. The pandemic is not a licence to act negligently, but the standards to be expected reflect the realities on the front line of healthcare. What would be negligent at any other time, might not be during this crisis. – the pandemic may render reasonable what would usually be unreasonable.

I am sure I speak for everyone who works in the field of clinical negligence in applauding the work done by healthcare professionals around the world, but especially in the NHS, and in wishing everyone, patients and professionals alike, the very best during the remaining months of this awful crisis.

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