Should Doctors be Immune from Medical Negligence Claims While Fighting COVID-19?

The COVID-19 virus is one of the most serious healthcare issues in the history of the NHS. Medical professionals have been required to manage a number of complex issues and situations. This includes performing procedures outside their expertise, delays in screening/treatment of non-coronavirus illnesses, ethical dilemmas, and legal concerns surrounding negligence claims.  

With the added burden on health workers and the widespread disruptions in healthcare services, there will likely be an increase in the number of clinical negligence claims.

This raises an important question: Should doctors be given immunity or leniency from legal action if they make a mistake? 

Is this fair on the family who have lost a loved one or are faced with the huge care or other costs to help a family member rebuild their life.

What Qualifies as Medical Negligence?

Compensation claims succeed when a claimant (aggrieved patient) is able to establish a breach of duty and it can be shown that the harm suffered by the patient is directly linked to the doctor’s failure to meet the acceptable stand of care.

According to Bolam v Friern Hospital Management Committee (1957), a healthcare professional is not liable for a medical negligence claim if he/she “acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.” But with the NHS deploying final year medical students and retired doctors to perform duties they are not sufficiently trained or experienced in, many questions are being raised.

Has the Pandemic Affected the Process for Pursuing a Medical Negligence Claim?

Typically, a claimant has a time limit of 3 years from the date of negligence (or knowledge of negligence) to bring a claim against a doctor or institution. But following the challenges caused by the pandemic, NHS Resolution launched the COVID-19 Clinical Negligence Protocol 2020 to “encourage positive behaviours from both claimant and defendant lawyers and organisations as well as consistency of approach in practices across England.”

The new protocol—which took effect in August 2020—factors in the unavoidable delays in obtaining evidence for negligence claims, remote examination/hearings in line with social distancing regulations, and the clinical commitments of doctors, among other challenges relating to the coronavirus.

The pandemic has also affected the level of assistance that an aggrieved patient could have accessed amid lockdown restrictions. Another issue worth considering is the solicitor’s investigations into the financial losses that a client can recover from lost earnings – i.e., they may not have been able to work during the lockdown. These concerns have been recognized by the General Medical Council (GMC).

Should NHS Health Workers be Immune From Negligence Claims?

Health and Legal experts are divided on the issue of immunity from negligence following the pandemic. Below are some opinions on whether NHS staff should be completely shielded from clinical negligence claims.

Yes – Calls for Immunity

The arguments brought forward for immunity from compensation claims draw on three issues:

  • the cost of medical negligence in the NHS,
  • the increase in negligence claims during the pandemic,
  • and the emotional/psychological burden endured by doctors in the challenging conditions.

Some states in the United States of America have already adopted laws that give healthcare providers “immunity from civil liability for any injury or death alleged to have been sustained because of any acts or omissions undertaken in good faith’ during the crisis.” But what about the NHS?

According to Dr Christine Tomkins, MDU (Medical Defence Union) Chief Executive:

“…Any compensation paid will be a drain on NHS resources and disastrous for the morale of staff who are acting so selflessly and courageously. Claims will also place an additional burden on taxpayers, who will be facing all the economic consequences of the pandemic. It would be better to allow the NHS to focus its time, efforts and financial resources on recovering from the pandemic.”

She goes on to express her concerns that claims for medical negligence are likely to arise “long after public memory of the sacrifices made by healthcare workers have been forgotten and the circumstances of the pandemic which requires people to work outside their speciality and beyond their experience will also be forgotten.”

Although the recent Coronavirus Act 2020 has given NHS Resolution the mandate to launch a new Clinical Negligence Scheme for Coronavirus that provides additional indemnity coverage (i.e., doctors will not personally pay for negligence damages), proponents for immunity suggest that the allegations are still distressing to the healthcare providers and their sacrifices are not reflected.

Dr Christine Tomkins also argues that there are other measures and procedures to ensure accountability in healthcare that don’t involve monetary compensation from negligence claims. 

No – Problems with Immunity

While it is clear that medical professionals are under extreme personal and professional pressure tackling the Coronavirus pandemic, a number of experts in medical law—including Sarah Devaney, Emma Cave, José Miola, Rob Heywood, and Craig Purshouse—argue against immunity from compensation claims.

These opponents of the MDU’s proposition for immunity are of the opinion that such measures are not necessary. They are also worried that giving doctors immunity from negligence liability may send a wrong message that NHS patients are not entitled to proper care during these trying times. Here are some arguments against immunity:

Immunity from Medical Negligence Claims is Not Necessary

  • For a successful claim, it is upon the claimant and his/her legal representatives to prove that there was negligence leading to the error or mistake. If indeed a healthcare professional worked within the accepted guidelines and standards of a reasonable doctor, he or she would not be exposed to litigation. In other words, doctors should not be worried about the risk of negligence claims—unless blatant mistakes and errors occur, in which case they should not be immune from legal action.
  • The law is well-established and it offers sufficient protection for doctors in the current extraordinary times. For example, Wilsher v Essex Area Health Authority (1988) and the more recent Mulholland v Medway NHS Foundation Trust (2015) highlight the legal flexibility that is in place to account for the reality of working in unprecedented circumstances. In the latter case, the judge ruled that “the standard of care owed by an A&E doctor must be calibrated in a manner reflecting reality.”
  • Doctors in the NHS are covered from clinical negligence liability for services related to the coronavirus—thanks to the new state indemnity scheme by NHS Resolution.

Patients are Entitled to Proper Healthcare

  • Whether there is a pandemic or not, patients are entitled to legal redress if they fall victim to negligent healthcare. Stripping the entitlement to proper healthcare curtails a patient’s rights, it is morally wrong and unjust—hence not acceptable. Patients should be entitled to compensation, an explanation, an apology, and justice for any loss and/or injury due to medical negligence.
  • Medical professionals should be held accountable for their actions and guaranteeing immunity undermines this important principle.
  • Immunity sends the wrong message to both the public and the healthcare industry regarding the acceptability of poor standards of care.
  • There is also an issue relating to doctors who are subjected to negligence as patients. If the healthcare workers fall ill while carrying out their duties and they are victims of substandard care in the challenging circumstances, should the institutions treating them be immune from negligence liability?

What Types of Medical Negligence Claims May be Brought?

People could make medical negligence claims for wide-ranging issues relating to the COVID-19 pandemic. Some examples include:

  • Being inadvertently exposed to infection.
  • A hospital’s lack of preparedness for the coronavirus pandemic.
  • Failure by a doctor to accurately diagnose the disease or missed diagnoses due to remote consultations.
  • Erroneous procedures performed by clinicians who are either inadequately trained or working outside their area of expertise.
  • Failure by medical and support staff in providing acceptable levels of care. For examples, nurses may fail to follow a care plan, carry out necessary assessments, or use medical equipment incorrectly.
  • Accident and emergency (A&E) compensation claims.
  • Inappropriate treatment or delays in treatment for a diagnosed patient.
  • Omissions and errors due to a hospital system’s lack of qualified staff.

Outside medical negligence claims, personal injury claims may also be brought against employers who fail to ensure a safe coronavirus-free working environment.

Contact Clinical Negligence Solicitors

If you feel that you or a loved one is a victim of medical negligence, it is important to seek advice from an experienced medical negligence solicitor. You need an expert to help you navigate these unprecedented circumstances in line with the recent Covid-19 Clinical Negligence Protocol. Solicitors will determine if there was a breach of duty and causation before advising you on the best way to approach your compensation claim.

Devonshires Claims’ medical negligence solicitors are members of the Action Against Medical Accidents (AvMA) and the Association of Personal Injury Lawyers (APIL).

Our GP and hospital negligence compensation claims service provides:

  • A free no-obligation case evaluation
  • Advice on the probability of success for a medical negligence claim and the amount of compensation you could potentially obtain
  • Friendly, compassionate and experienced claims experts
  • No Win No Fee agreement i.e. you will not incur any costs if your claim is not successful*.
  • Access to a network of medical experts and specialist barristers

Our experts work hard to secure victims of medical negligence the justice and compensation they deserve.

To start your NHS or medical negligence claim contact our experienced solicitors today. Call us on 0333 900 8787, email cn@devonshires.co.uk or complete our online form.

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