Clinical Negligence, Patient Safety and COVID-19: A monthly round up of must-read articles [June 2020]

30 June 2020

Photo by Edward Jenner

The pandemic is not a licence to act negligently, but the standards to be expected reflect the realities on the front line of healthcare. What would be negligent at any other time, might not be during this crisis – the pandemic may render reasonable what would usually be unreasonable.

(Mr Nigel Poole QC, 2020)

Welcome to my round up of must-read articles recently published on COVID-19, clinical negligence and patient safety. Here, I provide a round up of some of the key themes, information and opinions which are emerging online. This blog post does not constitute legal advice and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances.

I will be putting the lens on articles and blog posts from Mr John Tingle, Lecturer in Law at Birmingham Law School, University of Birmingham (UK), Mr Nigel Poole, Clinical Negligence QC, Head of Kings Chambers, Dr Daniel Sokol, clinical negligence barrister at 12KBW, medical ethicist and award winning medical journalist, Mr Isaac Hogarth, specialist clinical negligence barrister at 12KBW and Mr Peter Walsh, CEO of AvMA (with their kind permission).

I am acutely aware that this blog post is being published during a pandemic and at a time when many healthcare professionals are doing phenomenal work. I am a MSc Student in Public Relations and Communication (Healthcare Communication) specialism and am sharing my research and learning which I have collected and organised. This may be of value to fellow healthcare communication students, law students, lawyers, patients and healthcare professionals.

How will COVID-19 affect clinical negligence litigation in England and Wales?

A blog post was published on 23 April 2020 by Mr Nigel Poole QC on his blog “Learned Friend” setting out his opinion on how the coronavirus will affect clinical negligence litigation in England and Wales. Mr Poole QC is also the author of Clinical Negligence Made Clear: A Guide for Patients & Professionals published in October, 2019.

Mr Poole QC has opined that “context is all” ie., the present context will be of great significance when the courts weigh up whether a Trust or a professional has acted negligently during this period. Mr Poole QC in his blog draws a distinction between patients who do not present to a GP or A & E because of the pandemic and patients affected by delay in diagnosis. For further information, read the full blog post here.

Mr Poole QC states that “the resource implications of the pandemic would…be taken into account by the Court. What would have previously been an inexcusable delay in the system, might be regarded as acceptable in the current circumstances.”

Significantly, Mr Poole QC stated that “an expert that has no direct experience of working in the circumstances that currently prevail, will not be able to assist the court as well as another expert who does have that information and experience.”

Mr Poole QC is hosting a free webinar on 3 July 2020 at 12.30pm entitled Clinical Negligence Made Clear- The Impact of Coronavirus on Clinical Negligence Litigation. The hashtag for the event is #CNMC and it is for patients, healthcare professionals, law students and clinical negligence lawyers.

COVID-19 and ICU Triage

However, it would be a mistake for doctors to think that working in a stressful covid ward in and of itself provides immunity against negligence claims. Even in challenging circumstances, there are mistakes that no reasonably competent doctor would make.”  

(Sokol, 2020)

Dr. Daniel Sokol’s blog – the Medical Ethicist is a mine of information for COVID-19 articles. At the time of writing this blog post, I identified at least six relevant articles (i) Developing an ICU Triage Protocol for COVID-19 (ii) Can non-specialty doctors on covid wards still be sued? (iii) An interview with Dr Daniel Sokol on the COVID-19 ICU Triage Protocol (iv) Where are the ICU triage protocols (v) ICU Triage Protocol: decision making for intensive care triage in COVID-19 emergency and (vi) The life and death decisions of COVID-19

Dr. Sokol is also the author of Tough Choices: Stories from the Front Line of Medical Ethics (2018).

Redeployment

“The BMA has advised its members not to accept redeployment outside their competence, although in the real world (and where doctors are trying their best to cover rota gaps), it is probably unrealistic to expect all redeployed doctors to have the relevant up-to-date training. It is inevitable that this will lead to challenges in patient safety, and it is probable that some patients will suffer harm.” (Isaac Hogarth, 2020)

Mr Isaac Hogarth, specialist clinical negligence and personal injury barrister discusses “the issue of the standard of care to be applied to redeployed doctors in a Covid-19 setting. He suggests that legislation would be required to lay down any proposed modifications to the standard of care” in his recent blog post. Mr Hogarth suggests that any such legislation should be narrow in its terms so as not to curtail important patient rights.

The blog post entitled “Standard of care in a clinical setting during the Covid-19 crisis” published on 1 June 2020 sets out the law on standard of care and a detailed consideration of established principles in the context of Covid-19. Mr Hogarth clarifies that “whilst the Coronavirus Act contains provisions to ensure that redeployed health workers are indemnified (see section 11(3)(b)), it does nothing to alter the standard of care under which they are required to operate. ”

Mr Hogarth is also the author of “A Practical Guide to Sepsis and Meningitis Claims” published in November, 2019.

Legal Immunity

We need to resist calls to give legal immunity from clinical negligence claims to doctors and others during the COVID-19 pandemic. The courts and judges should be trusted to deal with such claims fairly and patients’ rights to claim for negligence respected. Faith in our civil justice compensation system should be maintained during COVID-19. (John Tingle, 2020)

The MDU called for national debate over protecting NHS from COVID-19 clinical negligence claims stating that “doctors should be spared from the stress and anxiety of medical negligence claims following the pandemic.” John Tingle opined that this is not the time to call for what amounts to root and branch tort law reform. He stated that “the call seems to omit the patient’s right to claim compensation for negligent injuries caused to them by those who were meant to care for them.” The full article is entitled COVID-19 and Clinical Negligence litigation, law reform and is published on the University of Birmingham blog.

This issue is also examined by Dr Sokol in his blog post entitled “Can non-specialty doctors on covid wards still be sued?” published on 16 April, 2020.

Dr Sokol raised a question: “Would an orthopaedic or ophthalmic surgeon on the medical ward, fulfilling the role of a medical registrar, be given some slack by the courts? In other words, is the standard of care expected of these doctors lower than it would otherwise be?” The short answer is no. The expected standard of care and skill will be based on the post that the doctor is fulfilling at the time of the alleged breach,” Dr Sokol said.

Patient Safety Issues

A further four articles have been published online in the British Journal of Nursing written by Mr John Tingle, Lecturer in Law at Birmingham Law School and are a rich source of reliable information with links to relevant case law and further literature. The articles are entitled (i) COVID-19 safety in maternity care lessons for the whole NHS (ii) patient safety round-ups during COVID-19 pandemic (iii) patient safety and litigation in the NHS post COVID-19 and (iv) Litigation and patient–carer, safety issues in the COVID-19 crisis.

Mr Tingle discusses multiple issues to include (i) legal, ethical and patient safety issues (ii) restriction of patient choice in a crisis (ii) responsibilities of employers, employees, PPE, staff safety and the employment relationship (iii) refusal to treat where PPE is inadequate (iv) the role of tort law (v) indemnity issues (vi) legal immunity (vii) moral and legal rights to sue for negligence (viii) risk areas such as equipment and pharmaceutical manufacture (ix) the US perspective (x) clinical guidelines and the law.

Mr Tingle is also a guest blogger on the Harvard Law School blog and a new post COVID-19 Clinical Negligence and Patient Safety Update was published on 17 June 2020. Mr Tingle highlights that a key issue will be whether medical practitioners followed relevant clinical guidelines.

Call for urgent action on non COVID-19 diagnostics and treatment

Whilst the drastic action taken at the start of the current pandemic to protect patients, staff and the NHS by closing down many NHS services other than those treating COVID-19 patients was understandable, AvMA is increasingly concerned about the consequences for patients with other conditions which need urgent treatment or diagnostic procedures.We have already been receiving enquiries from patients or their families where the unavailability of such services appears to have resulted in avoidable harm or even death. Solicitors around the country tell us that they have also.”

Peter Walsh (2020)

Mr Peter Walsh, CEO of AvMA has published two articles on the AvMA blog entitled “Saving lives threatened by COVID19 is rightly a priority, but many more can be saved by improving patient safety” and “Urgent action required to prevent avoidable harm and deaths amongst non COVID-19 patients”

AvMA have called on the UK Government to address the unavailability of urgent diagnostics and treatment for thousands of non COVID-19 patients and will be creating a petition on the UK Government website.

(Not the) Annual Clinical Negligence Conference -AvMA 25 June 2020

Action against Medical Accidents (AvMA) held the (Not the) Annual Clinical Negligence Conference on 25 June 2020. My own best moments as a remote follower of the online conference are contained in the tweet below.

DISCLAIMER

This blog post does not constitute legal advice and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances.

FURTHER READING

Intensive Care Protocol. Available from: http://medicalethicist.net/wp-content/uploads/2016/06/v5-Sokol-ICU-Triage-April-2020.pdf [Accessed 22 June 2020]

Hogarth, I. (2020) Standard of care in a clinical setting during the Covid-19 crisis. Available from: https://clinicalnegligence.blog/2020/06/01/standard-of-care-in-a-clinical-setting-during-the-covid-19-crisis/ [Accessed 28 June 2020]

NICE (2020) COVID-19 rapid guideline: critical care in adults. Available from: https://www.nice.org.uk/guidance/ng159/resources/critical-care-admission-algorithm-pdf-8708948893 [Accessed 22 June 2020]

Poole, N (2020) Coronavirus and litigation. Available from: https://nigelpooleqc.blogspot.com/2020/04/coronavirus-and-clinical-negligence.html [Accessed 20 June, 2020]

Ricker D. As exposed health care workers seek legal remedies, who’s liable for lack of personal protective equipment? 2020. https://tinyurl.com/y8vvkxqc [accessed 18 June, 2020] Google Scholar

Rudd-Clarke P (2020)  Coronavirus and the risk of an outbreak of litigation. https://tinyurl.com/yx86satc [accessed 18 June 2020]  Google Scholar

Sokol, D (2020) Publications Available from http://medicalethicist.net/publications [Accessed 28 June 2020]

Tingle J., (2020) Litigation and patient–carer, safety issues in the COVID-19 crisis. British Journal of Nursing. Available from: https://www.magonlinelibrary.com/doi/full/10.12968/bjon.2020.29.9.535?utm_campaign=British_Journal_of_Nursing_TrendMD_0&utm_medium=cpc&utm_source=TrendMD

Tingle J., (2020) Patient safety and litigation in the NHS post-COVID-19. British Journal of Nursing. Available from: https://www.magonlinelibrary.com/doi/full/10.12968/bjon.2020.29.7.444?utm_source=TrendMD&utm_medium=cpc&utm_campaign=British_Journal_of_Nursing_TrendMD_0 [Accessed 20 June 2020]

Tingle, J., (2020) Patient safety reports round-up during the COVID-19 pandemic. British Journal of Nursing. Available from: https://www.magonlinelibrary.com/doi/abs/10.12968/bjon.2020.29.10.582?utm_source=TrendMD&utm_medium=cpc&utm_campaign=British_Journal_of_Nursing_TrendMD_0 [Accessed 20 June 2020]

Tingle, J., (2020) COVID-19 safety in maternity care: lessons for the whole NHS, British Journal of Nursing. Available from: https://www.magonlinelibrary.com/doi/full/10.12968/bjon.2020.29.8.486?utm_campaign=British_Journal_of_Nursing_TrendMD_0&utm_medium=cpc&utm_source=TrendMD [Accessed 20 June 2020]

Walsh, P. (2020) Urgent action required to prevent avoidable harm and deaths amongst non COVID-19 patient. Available from https://www.avma.org.uk/policy-campaigns/the-avma-blog/urgent-action-non-covid-patients/ [Accessed 29 June 2020]

Walsh, P. (2020) Saving lives threatened by COVID19 is rightly a priority, but many more can be saved by improving patient safety. Available from: https://www.avma.org.uk/policy-campaigns/the-avma-blog/covid19-and-patient-safety/ [Accessed 29 June 2020]

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