The use of the adjective “unprecedented” has been in overdrive in recent weeks. We live in unprecedented times. There are unprecedented demands on our National Health Service. We are living in an unprecedented lockdown and we have unprecedented restrictions on our day-to-day lives.

In response to the COVID-19 pandemic, it has been necessary to put in place a plethora of new processes to ensure the NHS is able to cope with a surge in demand. One such measure is the redeployment of clinicians outside their normal scope of practice. In addition, retired practitioners are returning to the workforce and final year medical students have been fast tracked through the end of this study to reinforce staffing levels.

In 2018/19, 10,678 new clinical negligence claims were received by NHS Resolution. The value of those claims totalled £4.9 billion. It is inevitable that during this crisis, clinicians will be stretched and mistakes will be made. The Coronavirus Act 2020 evidently had this in mind, and addresses the issue of indemnity for health service activity at sections 11 to 13.

Given the unique nature of this crisis, as and when such claims come before the courts in the future, a fundamental question that will need to be addressed is whether or not the current situation gives rise to a lower standard of care.

The law as it stands, excludes the experience of a clinician when establishing the legal standard of care. The test is an objective one. The individual medical practitioner is judged by the standard of a reasonable doctor, skilled in that particular specialty. Therefore, a general practitioner must act as a reasonable general practitioner, and a neurosurgeon as a reasonable neurosurgeon and so on. This principle was underscored in the case of FB (Suing by Her Mother and Litigation Friend (WAC) v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334.

The case of Pope v NHS Commissioning Board [2015] (unreported), which concerned a clinical negligence claim arising out of the H1N1 (Swine Flu) pandemic, provides some guidance as to how courts may consider claims arising in such challenging times. In this case, a patient attended her local health centre concerned that she had contracted H1N1. She was reassured and advised to return home and rest. The member of nursing staff who saw her, who was experienced, did not follow the national guidance on the management of potential H1N1 cases. The patient was subsequently admitted to the Emergency Department, where she suffered a cardiac pulmonary arrest resulting in profound brain damage. At trial, the Court found that the defendant, through its employee, had breached their duty of care and that the breach resulted in the claimant’s catastrophic brain injury.

However, the case of Mullholland v Medway NHS Foundation Trust [2015] EWHC 268 (QB) raises an alternative judicial approach that may be applied when determining the appropriate standard of care. This case concerned a patient who was subsequently diagnosed with a cerebral tumour. The claimant brought the action against the trust in relation to the care he had received in the Emergency Department. The basis of his claim was that the Emergency Department clinicians had not assessed him as meriting an immediate CT scan. As a result, such a scan was not performed until some seven months after he first presented. In its Judgment, the Queen’s Bench Division, taking into consideration the pressures and manner of work within the department, found that there was no breach of duty of care by the Emergency Department physicians. The judgment noted that the standard of care “must be calibrated in a manner reflecting reality”.

Only time will tell the precise approach that courts will take in clinical negligence claims arising from or during COVID-19. Each case will of course be fact specific. The importance of adhering to clinical protocols will be an important element. It would appear, as set out in Pope, that the starting point will remain whether a reasonable body of medical practitioners would have acted in the same way. However, the judgment in Mulholland will inevitably influence the analysis of the factual matrix when assessing the reality of the clinical working environment.

The medical defence organisations are already gearing up to deal with the aftermath of this pandemic. Once the dust has settled, it will be important to have a clear steer from the judiciary as to how these cases will be determined.

Dr Neil Shastri-Hurst is a member of the Clinical Negligence Group. His CV can be found here.