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Personal Injury & Clinical Negligence analysis: James Davies, senior associate at RPC, considers the future personal injury and clinical negligence claims that may be brought as a result of the coronavirus (COVID-19) pandemic.
Yes. With thousands of coronavirus-related illnesses and deaths arising from the virus, it is likely that the pandemic will lead to an increase in clinical negligence claims, both in the NHS and private sector. These are likely to be claims both directly and indirectly related to coronavirus. For obvious and 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 and other organs, early indications suggest the long-term effects could be severe. Psychiatric injury related to coronavirus exposure is also possible.
The types of clinical negligence claims could be wide-ranging. Clinical negligence ‘directly’ related to coronavirus 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. Indirect claims will arise from the health sector’s focus on coronavirus, and the reluctance to see patients in person, they will include delays in diagnosis or treatment of other conditions (for example cancer), errors or omissions due to a lack of staff or inadequately trained/qualified staff, and missed diagnoses due to telemedicine/ remote consultations.
We may see an increase in employers’ liability personal injury claims if employers have failed to ensure a safe coronavirus environment, including supplying adequate personal protective equipment, which results in an employee contracting the virus.
The usual issues of breach of duty and causation will need to be addressed, albeit this may be very different to what legal practitioners and insurers are used to (for the reasons discussed below). Causation may become a thorny issue if there had been various possible ‘opportunities’ for the claimant to contract coronavirus, and it is possible that issues of contributory negligence will arise if the claimant failed to take recommended steps in self-protection. Limitation will also have to be carefully assessed, as ‘date of knowledge’ arguments are likely to arise if the patient is tested for coronavirus after the date of the negligent event (ie when symptoms started, or when a patient has a positive coronavirus test).
Expert evidence on breach of duty may well evolve in a coronavirus-related claim (for the reasons set out in my response to the next question). Respiratory medicine, microbiology and Pathology expert evidence is likely to be critical in assessing causation, as will expertise in intensive care medicine. Perhaps we will see ‘COVID-19 experts’ emerge as a new expert witness specialism.
In cases where the cause of infection needs to be assessed, it is possible that a claimant will not have to prove the precise cause, as this would be near impossible, but that the breach(es) of duty were more likely than not the cause (above 50%). To do so, statistical, evidence of hospital acquired coronavirus infections may play a big part, as we have seen in MRSA claims.
If group actions emerge, the evidence of Epidemiologists and Biostatisticians will be key.
Given the extremely rare set of circumstances of the pandemic, this seems a strong possibility. The coronavirus pandemic has resulted in an unprecedented number of doctors and nurses coming to the ‘front line’ to tackle the virus. There have been reports of retired clinicians returning to work, final year students stepping up into clinical practice several months early, doctors retraining on intubating patients etc. It therefore seems entirely possible that a new (or evolved) legal test for breach of duty would have to be formulated in a coronavirus 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. Coronavirus may result in a further move away from Bolam.
Picture this future claim scenario—a patient with coronavirus 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’ or ‘reasonable’ in a pandemic? 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 coronavirus-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 is simply no precedent in recent history for what counts as acceptable in a pandemic on this scale.
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.
This analysis was first published on Lexis®PSL PI & Clinical Negligence on 22 September 2020.
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