The NHS is facing unprecedented pressure as a result of the coronavirus pandemic. Sir Simon Stevens, NHS England’s chief executive, has reported that a Covid-19 patient is admitted to hospital every 30 seconds. Since Christmas Day, more than 15,000 patients have been admitted, enough to fill 30 hospitals.
Back in March we were standing on our doorsteps supporting them, clapping our hands and banging our pans. The situation is worse now. Many NHS staff working on the front line are completely exhausted and traumatised from the relentless workload in extremely challenging conditions.
Medical staff are having to make impossible decisions over which patients to treat and how to allocate increasingly limited resources. Last week, the Medical Protection Society wrote to Health Secretary Matt Hancock warning that the NHS is at risk of being overwhelmed within weeks. The letter called for new legislation to protect NHS workers from criminal prosecution or internal investigation, should they need to withdraw life support from one patient to focus on treating others.
Why are medical negligence claims arising?
In such an environment, routine operations and investigations have been cancelled or postponed indefinitely. There are reports in the media of cancer patients falling through the gaps and a dramatic fall in hospital attendances by cardiac and stroke patients. It is inevitable that non-Covid patients, whose medical conditions fail to be treated, will sadly lose their lives as a result.
Debates surrounding the legal and ethical challenges raised by the pandemic are never going to be easy. However, the duty of care owed by doctors to their patients does not change as a result of the pandemic. The Courts will, in future, have to carefully weigh up various issues when considering medical negligence claims arising as a result of the Covid pandemic.
The Origins of Duty of Care and the Bolam Test
The Bolam test was established in 1957 in the case of Bolam v Friern Hospital Management Committee  1WLR 582. The Court held that if a doctor has acted according to proper and accepted practice, he is not guilty of medical negligence. If there is a group which is of the opinion that the practice is wrong, it does not automatically mean that the doctor was acting negligently. It also states that the standards should be judged by one’s own peers — not the longest-serving doctor or the senior consultant, but those who work in the same field and are peers of the doctor in question. Likewise, the standard to which the case should be compared is that of an ordinary and competent doctor acting in everyday practice — not that of an idealised view or the ‘perfect’ doctor.
Of course, many practitioners have come out of retirement or been seconded to help in the fight against Covid. In FB v Alexandra Hospital NHS Trust  EWCA Civ 334, the Court of Appeal held that the standard of care is not to be lowered for an inexperienced doctor. If a doctor does not have the requisite degree of skill for the role in which they are acting, the hospital authorities will be liable for putting the doctor in a position that was too advanced for their abilities. It remains to be seen whether the Courts will draw parallels between inexperienced doctors and those returning to practice or filling unfamiliar roles.
In 1996 the Bolam test was modified by the House of Lords, in the case of Bolitho v City and Hackney Health Authority  4 All ER 771. Put simply, it states that the defence could not be considered reasonable if the body of doctors or supporting witnesses were not capable of withstanding logical analysis. Simply providing a defence is not quite good enough; that defence and its body of opinion must be reasonable and responsible. A case which is defended based on a practice which is not reasonable or logical cannot be defended.
It is important to note that the Court will not apply the benefit of hindsight when considering what is reasonable. Covid-19 is a new virus and the medical profession knew little about it until last year. There will undoubtedly be a wide range of reasonable opinion or practice regarding how the health service has dealt with Covid. Many factors will need to be considered including the number of patients, the reallocation of resources and personnel, the safety of investigations and procedures, and the need to clear beds.
On 9 April 2020, Chamberlain J handed down his judgement in the case of UCLH NHS Foundation Trust v MB  882 (QB). MB had been fit for discharge from the National Hospital for Neurology and Neurosurgery since May 2019 but refused to leave until various adaptations had been made to her property and a 24/7 care package guaranteed. The need to vacate her bed became more urgent due to the pressures on resources due to Covid-19 and the Trust issued eviction proceedings. The Court held that the hospital must strike a balance between the needs of all patients and are entitled to choose how to prioritise scarce resources. MB was ordered to vacate her hospital bed within seven days.
Although medical staff have a duty of care to their patients, that duty does not extend to non-patients. The NHS cannot be held liable for injury to a person who chooses not to attend their GP because they are scared of contracting Covid. Equally, claims pursued by people who have caught Covid from a former patient are likely to fail. For example, if a patient is negligently discharged from hospital into a care home and their carer contracts Covid, the carer cannot sue the hospital, although they may potentially have a claim against their employer for failure to provide adequate personal protective equipment.
Causation For Medical Negligence Claims
In medical negligence claims, liability only arises when the breach of duty causes or materially contributes to injury or death. In a climate where 1 in 10 members of the public have tested positive for the virus, proving the source of a claimant’s Covid infection is likely to present huge difficulties.
Claims due to delays in treatment
Claims involving delays in treatment for non-Covid conditions will be hard to establish. Even if the initial delay due to Covid was considered to be negligent, there may well have been later, non-negligent delays in the NHS system in any event.
Claims due to fatality and bereavement from COVID-19
Fatality and bereavement claims are likely to be problematic. Although Covid affects all ages, the vast majority of patients who have died were elderly or had significant co-morbidities. Claims are likely to be defended on the basis that the claimant had a limited life expectancy.
Claims due to ‘long COVID-19’
The effects of so-called “long Covid” are yet to be understood but there may potentially be claims for future care and therapy, perhaps even accommodation claims for people who develop significant disability as a result of infection.
Claims due to loss of earnings
Claimants who pursue claims for loss of earnings may have to consider the possibility that they were on furlough from work or made redundant as a result of the crisis.
Although there is unlikely to be an avalanche of medical negligence claims brought against the NHS in the coming months and years, those cases that are pursued will invariably raise complex and challenging legal dilemmas, for claimants, defendants and the Courts. It is crucial that anyone who believes they may have a claim for medical negligence seeks specialist legal advice from a solicitor with expertise in this area of law.
Gail Waller, Associate Solicitor - 0800 84 94 101