While there may be direct claims in the future relating to treatment for Covid or testing for the condition in clinical settings, it is the indirect cases concerning the knock on effect of Covid that may present a greater challenge. Patients who have had their treatment for a particular condition delayed due to COVID-19 restricting hospital resources may consider legal action in the future. Oncologists have expressed particular concerns about delays in cancer diagnosis and treatment, and poorer outcomes associated with delay in diagnosis and treatment could form the basis of a number of claims. In the months and years ahead the interface between finite healthcare resources, allocation of these resources and the standard of care to be applied in a pandemic will be under close scrutiny.

Whether the alleged breach of duty involved a decision at a macro or micro level, is likely to be key to unlocking the standard of care. Some lessons may be available from history. Contrast the case of Hardaker v Newcastle Health Authority (2001) where a hospital did not have a decompression chamber available for a diver suffering the bends, with Bull v Devon Area Health Authority (1993) where there was a one hour delay in securing the attendance of a suitably qualified doctor in a maternity setting. In Hardaker the court considered the hospital’s duty to be qualified by resources available to them and in any event they were faced with a relatively rare situation (i.e. a macro/economic decision and ‘non-justiciable’). The Health Authority was found to not have been negligent. In Bull the Court of Appeal determined that there was a bottom line to be met, in this case a system in place to secure prompt attendance (i.e. a micro/medical decision and therefore ‘justiciable’).

In any scenario context and the factual scenario is likely to be central to whether a Claimant can successfully prove the case. For example in Mulholland (2015) the High Court considered that “in forming a conclusion about the conduct of a practitioner working within a busy A&E department, context cannot be ignored”. In Darnley (2018) (where Capsticks represented the defendant NHS Trust), the Supreme Court considered “the difficult conditions in which staff have to work in A&E departments” to be a relevant factor when determining whether a breach of duty had occurred. 

However the courts decide on such issues in the future what is certain is that a clear evidence trail around allocation and decision making should be adopted in all healthcare organisations and all health professionals in readiness for this scrutiny.

Medical Malpractice Forward View 2021 

This article is part of Capsticks’ Medical Malpractice Forward View 2021. 

Read the other articles featured in this publication below: 

• Spotlight on two pending court decisions
• Decision in Maughan may lead not only to an increase in requests for an unlawful killing conclusion at inquest, but have wider consequences
• Resource issues are likely to have a significant role in determining the standard of care in claims arising during the pandemic
• Remote hearings and medical examinations are likely to continue for the foreseeable future
• Safety and learning will remain front and centre in healthcare
• The roll-out of digital healthcare is likely to continue apace
• Artificial Intelligence is likely to assist in the post-Covid recovery of healthcare services, but could be a ‘disrupter’ in healthcare law
• Research and development in life sciences will assume even greater importance as will information governance around the use of apps

Get in touch 

Capsticks advise and support medical malpractice insurers and healthcare providers on all aspect of medical law including claims, inquests and regulatory proceedings. 

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan, Anna Walsh, or Philip Hatherall.