Back to the Future: a look ahead at medical malpractice issues for COVID-19-related claims
The COVID-19 pandemic is likely to result in an increase in medical malpractice claims. We consider what claims might arise 'directly' and 'indirectly' from the virus, and how unique issues may result in changes to the legal test on breach of duty and the assessment of causation.
"We are all in this together": a phrase that encapsulates the entire nation's appreciation for doctors and nurses during this pandemic, which is palpable across all forms of media. There are reports of retired clinicians returning to work, final year students stepping up into clinical practice several months early, doctors re-training on intubating patients... the list goes on. Even Jamie Roberts has swapped his rugby boots for scrubs and is putting his medical degree to good use in the national effort. The COVID-19 pandemic will certainly result in an unprecedented number of doctors and nurses coming to the 'front line' to tackle the virus.
However, with thousands of COVID-19-related illnesses and deaths arising from the virus, it is likely that the pandemic will lead to an increase in medical malpractice claims, both in the NHS and private sector. For obvious and very sad reasons, fatal claims will inevitably increase. For non-fatal claims, it is currently unclear what long-term effects viral pneumonia and/or acute respiratory distress syndrome will have on the lungs. Psychiatric injury related to COVID-19 exposure is also possible.
Clinical negligence 'directly' related to COVID-19 may arise from a hospital's system's lack of preparedness for a pandemic, a clinician's failure to diagnose the disease, inappropriate treatment for a patient once diagnosed, inadequately trained clinicians performing procedures outside of their usual expertise, and patients who are inadvertently exposed to the disease. There could also be claims 'indirectly' related to COVID-19. These could include: cancer patients experiencing delays to their chemotherapy treatment resulting in death or a reduction in life expectancy, delays in routine operations (e.g. orthopaedic surgery) resulting in prolonged pain, misdiagnosis of a variety of illnesses due to an increase in telephone consultations, and an increase in dental claims as a result of the cessation of routine dental care.
The Bolam test for breach of duty
Given the extremely rare set of circumstances, this begs the question – will we see an evolution of the Bolam test? As a reminder, the Bolam test for breach of duty is as follows: A doctor is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of doctors skilled in that particular art. The case of Bolitho added the requirement for that body of opinion to be reasonable, responsible and for their position to withstand a logical analysis of risks and benefits.
Picture this future claim scenario – a patient with COVID-19 receives treatment from a doctor or nurse who is acting outside of their usual speciality; let's say, a general surgeon. That treatment, for whatever reason, causes the patient an injury. Applying the Bolam principles, what is the 'responsible body' in this scenario? Would it be general surgery or a respiratory physician? What practice is accepted as 'proper' in a pandemic? What expert evidence would need to be obtained to opine on breach of duty? Perhaps we will see 'COVID-19 experts' as a new expert witness specialism. These are questions that the Courts will have to assess. But on the face of it, the Bolam test may no longer be an appropriate test for COVID-19-related claims in these circumstances.
Even if a patient is being treated by a clinician in their 'usual speciality' – the obvious example would be a respiratory physician – Bolam may still be an inappropriate legal test to establish whether that physician's treatment has fallen below a reasonable standard. How can an expert witness opine as to what is 'reasonable and responsible' in these highly unusual circumstances, where the demands and pressures on any practitioner are beyond the scope of any training? Although Government advice at the time of the alleged breach will have to be considered, there simply is no precedent in recent history for what counts as acceptable in a pandemic on this scale.
'A square peg and round hole' springs to mind. It seems entirely possible that a new legal test would have to be formulated in a COVID-19 claim. We have already seen this happen with consent cases; the Montgomery test has effectively made the Bolam test redundant when assessing whether a patient has been appropriately advised of the material risks before consenting to treatment. COVID-19 may result in a further move away from Bolam.
In COVID-19 cases, it may be difficult to assess causation. To use fatal claims as an example, reported cases indicate that many deaths will involve patients with underlying health conditions. It will therefore need to be established whether death was caused by COVID-19, the unrelated health condition, or a combination of both; and would the patient have died when they did 'but for' the negligent treatment?
In non-fatal claims, the scientific evidence to assess the existence of any long-term lung damage may not be available for several years. Respiratory experts may not be able to accurately assess this 'on the balance of probabilities' until such studies have concluded.
Any associated psychiatric injury may be multifactorial in cause; a future claimant may have lost their job or even family members as a result of the virus, which may have caused or contributed to the injury; it is suggested that the circumstances of the pandemic (including the effects of lockdown) will in themselves cause a deterioration in the mental health of many.
In cases where the cause of infection needs to be assessed, it seems likely that a claimant will not have to prove the precise cause, as this would be near impossible, but that the breach(es) of duty increased the risk of infection by more than 50%. To do so, statistical evidence of hospital acquired COVID-19 infections may play a big part, as we have seen in MRSA claims. Microbiology expert evidence will also be critical.
Looking ahead, Insurers should be mindful of these issues when assessing future claims. The usual rules may well go out of the window. COVID-19 claims will require very careful scrutiny, and it may be some time before the Courts can provide clarity on these issues.