Covid-19 and medical negligence litigation: Immunity for healthcare professionals?

Which healthcare staff will qualify for immunity?

Faced with the threat of Covid-19 and the impact on the NHS, a number of doctors and other allied healthcare professionals have been rapidly retrained and redeployed to unfamiliar settings and specialties to help treat patients, in addition to retired professionals and final year medical students called to step up to assist. Will it be these professionals, who one can perhaps readily sympathise with, who will be protected from negligence claims, but healthcare professionals who are continuing to work in their usual environment(s) such as anaesthetists, emergency medicine and critical care specialists, irrespective of the wider circumstances, will not be offered the same protection because, for all intents and purposes, it is business as usual? As is to be expected by virtue of the role of the MDU, their call for immunity is in respect of doctors, but what about the staff they work alongside: the nurses, midwives and other allied healthcare professionals?

At first glance one may view this as a moot point because medical negligence claims are normally brought against the respective hospital trust or institution through the principle of vicarious liability rather than individual clinicians, and claims are handled by dedicated teams who form part of NHS Resolution (formerly the NHS Litigation Authority). However, this does not mean that clinicians and healthcare professionals are not deeply affected when they hear they are subject to such a claim, and if immunity is granted to different sections and grades of staff but not others, there is a real risk that it will polarise and demoralise a workforce that was stretched even before the outbreak of Covid-19.

Will there be certain types of cases for which immunity will be provided, and what might these be?

It is suggested that the main consideration here is whether such immunity would apply within a narrowly defined field which would only include treatment of patients with Covid-19, or whether it would apply universally and so cover both Covid-19 and non-Covid-19 cases in recognition of the unprecedented scale of this pandemic. It may not even be possible to fully appreciate the consequences of this latter approach when consideration is given to the number of cancelled or postponed appointments, investigations and treatments that have taken place. In a news report on 12 March 2020, ⁹ it was reported that the waiting list for elective operations was around 4.6 million, whilst Cancer Research UK has suggested that, because of the formal pausing of screening services, “around 200,000 people per week are no longer being screened for bowel, breast and cervical cancer [whilst] the number of urgent referrals has dropped to around 25% of usual levels”. ¹⁰

Of course, delays in investigation and treatment, even if found to constitute a breach of duty, do not automatically satisfy the third criterion, i.e. that there is a causal link between the breach of duty and the harm the individual claims. Nevertheless, NHS Resolution has to investigate and respond to each claim, all of which incur significant costs regardless as to whether damages are ultimately agreed to or awarded, and therefore it is reasonable to understand why there are concerns if the number of claims increases significantly.

If any immunity is to be offered across the board to NHS staff, over what time period might this apply?

There are multiple facets to this: one consideration would need to be given to the date from which this immunity would begin, and whether it would be retrospectively applied, for example, from the date that the first Covid-19 patients presented to hospital, or the date the lockdown was imposed. There must also be a reciprocal consideration as to when such a period might end, and this may be further complicated if the decision is made to take account of regional variances in the spread of the virus which has seen pressures on the respective healthcare providers fluctuate.

Will immunity only be offered in respect of medical negligence claims or might it also apply so that healthcare professionals are protected from regulatory investigation?

The original calls to provide immunity in respect of medical negligence claims appear to be twofold: not only to try to protect the financial resources of the NHS so that substantial sums of money are not paid out at the expense of being utilised elsewhere, but also to try to protect our dedicated healthcare staff from the challenges and difficulties of being part of the defence against a medical negligence claim. In respect of the latter, therefore, one may wish to question if they should also be immune from their respective regulatory body.

Once again, though, if this is dissected, there are further considerations that should be borne in mind. As there has been a move from paternalistic to patient-centred care, so too has there been a shift towards a more open and transparent NHS with an emphasis on reflective practice, all of which is enshrined within the duty of candour. ¹¹ Providing immunity risks diluting this duty and is likely to reduce the ability to provide effective oversight, which in turn puts patient safety at risk. As previously stated, there is no suggestion that the motivation of healthcare professionals to do the very best for their patients has changed, but they are, ultimately, human and fallible and it may be an unintended consequence of granting any immunity that important lessons cannot be learned for the future. Instead, perhaps it will present a new opportunity to re-evaluate, and reset, the relationships between healthcare professionals and their regulatory bodies so that any investigations take place with compassion and an appreciation of the extenuating circumstances at the forefront.

Immunity and patients

Whilst this article has so far focused on healthcare professionals, there is another, equally important, group to consider when the question is asked about providing immunity from medical negligence claims – patients. As James Badenoch QC has noted, ¹² damages in medical negligence claims are not awarded on a whim; they are awarded when a breach of duty has led to avoidable harm and are calculated in a way to account, so far as is possible, for the loss and damage that the patient has suffered.

In a report from the Partnership for Responsive Policy Analysis and Research which looked at NHS litigation claims, the authors, whilst recognising the difficulties in trying to accurately categorise “types” of claimants, suggested three broad groups¹³:

Those for whom the negligence is life-changing;

A mixed group who might include those who have suffered loss or experienced poor outcomes and become fixated on searching for answers; and

Those who are aware of their rights and improved access to such claims.

Regardless of the views of any individuals within these groups, in the normal course of business, such patients, or their appointed representative, would bring a claim in order to seek redress, and if the claim is ultimately founded, monetary compensation. If immunity is granted, these patients will not have that ability purely due to the misfortune that any negligence occurred during a particular time period.

Aside from being unable to go through the process of seeking redress, and the perceived injustice of this, there is also the further consideration and more practical question as to how they might cope with the costs associated with the injury they have suffered. The costs themselves will vary on an individual basis, but the effect of such a policy of immunity is perhaps most strikingly demonstrated by considering a medical error that leads to a catastrophic brain injury. Such claims run into the millions of pounds and often involve the provision of annual payments amounting to hundreds of thousands of pounds. The awards themselves are substantial, but then so too are the costs involved in providing the individual who has suffered such harm with the appropriate care and support. These include, but are not limited to, costs associated with purchasing and/or adapting a property, the provision of care workers who may be required on a 24/7 basis, and health and therapy costs, as well as costs for medical equipment. It then becomes easy to see why such a large award is required, yet if immunity is granted, such patients, presumably, would not receive a penny, but would still have the same needs. This naturally leads to the question as to where they would then go, and it is most likely that such a burden, at least in part, would fall within social care.

Such an example is at the extreme end of the spectrum of awards for medical negligence claims; there are many cases where the awards amount to smaller sums of compensation. Whilst they will, cumulatively, add up to a significant total and it is this which contributes to the concerns about the spiralling costs associated with medical negligence claims, it is, arguably, more important to recognise that at the end of each claim is an individual patient, they are not only an individual with hopes, dream and aspirations, but they will be someone’s mother, father, brother, sister, husband, wife or child. Both they and their close family will have had their lives changed, to varying degrees, by whatever forms the basis of the medical negligence claim, whether that is physical and emotional harm, or even loss of life.

Conclusion

Medical negligence litigation, as a concept in itself, has always been a contentious area of law, with strong and passionate advocates on both sides, and that is not going to disappear anytime soon. Regrettably, harm is almost certainly going to continue occurring during the Covid-19 pandemic as a consequence of medical error. To grant immunity to healthcare professionals may well avoid the significant costs in medical negligence claims that are feared, but that does not mean it should happen. As demonstrated above, such claims are more complex than simply the award of a sum of money and trying to avoid the fact that they have happened is, respectfully, fraught with danger. This article has been written not only to explore the challenges that may be encountered in developing “immunity” as a policy and the consequences, both intended and unintended, but also to try to promote a wider debate and conversation about medical negligence litigation moving forwards.

In the current system, whilst such claims are adversarial, it does not mean that they cannot be handled with compassion for all parties (patients and healthcare professionals alike) and with an appreciation for the circumstances in which any negligence occurred – this should not provide an excuse, but it can provide an explanation, and from this important lessons can, and should, be learnt. The Covid-19 pandemic has changed life as we know it for everyone; recognising and facing up to the challenges it has presented within healthcare and the difficult working conditions without removing the ability of individuals who have suffered harm to seek redress is perhaps the fairest solution; yes it will cost money and alternative approaches may indeed be required to meet the financial demands of such claims, but it also provides the opportunity for those on all sides to work together to achieve equitable outcomes, and to focus on learning lessons to improve patient safety and reduce harm in the future.