Category: Duty of care

Breach of duty, Duty of care, Expert Evidence

Pneumococcal meningitis judgment: SC v University Hospital Southampton NHS FT [2020] EWHC 1610 (QB)

In this post, Isaac Hogarth summarises the recent case of SC v University Hospital Southampton NHS FT [2020] EWHC 1610 (QB), which involved a failure to diagnose pneumococcal meningitis.

Introduction

This is the first High Court judgment in a meningitis case in over three years. On 26 January 2006, a GP examined C, who was then aged 15 months. Being concerned by what he found, he sent C to hospital in an ambulance with a detailed referral letter identifying his findings and diagnosing “ ?meningitis”. At hospital, the clinicians diagnosed tonsillitis and sent C home. C in fact had a pneumococcal meningitis, and developed a right hemiparetic cerebral palsy and permanent neurological deficit.

In his introduction, having set out the above facts, Johnson J makes clear that the case is in fact far more nuanced and complex than those facts make it sound. He urges caution on the reader not to pre-judge on the basis of those incomplete facts, and notes that D had supportive expert evidence that the diagnosis of tonsillitis and discharge were reasonable.

The Facts

The relevant timeline is as follows:

  • On 23 or 24 January 2006, C, who was a previously healthy 15-month-old girl, had a mild temperature and was a bit withdrawn. Her parents thought she might be teething and did not seek medical help.
  • On the morning of 26 January 2006, she developed a temperature, prompting her mother to call NHS Direct. At some point during the morning, C’s condition deteriorated: her temperature rose, she became “very lethargic” and “very lifeless”, she had “glazed eyes” and a “vacant stare”.
  • C was seen by her GP at 11:50 that day. She was noted to be very lethargic and floppy and to have vomited three times. Her pulse was 160-170 BPM, her respiratory rate was 36 and her temperature was 40.1°C. He noted possible photophobia. The GP gave an intramuscular injection of antibiotics and Calpol, and called an ambulance.
  • After arrival at hospital by 13:15, C was seen by SHO Dr Rowley at 14:00. The SHO performed a detailed examination, but her impression was one of tonsillitis, with meningitis being unlikely. C was admitted for observation, and to be given oral antibiotics. C’s parents repeatedly questioned the diagnosis of tonsillitis, and sought reassurance that meningitis had been ruled out.
  • The documented observations thereafter are limited.
  • At 18:40, C was seen by Dr Roe, Consultant. The note was as follows:

“Frequent contact with other children

Fully immunised

On examination: alert, miserable, walking around play area

Temp 40 ↓37.2 Normal respiratory rate No neck stiffness

Large inflamed pussy tonsils, ears not examined

Impression: tonsillitis

Plan: 5 days oral penicillin

Encourage fluids

Home, review tomorrow John Atwell Day Ward 2.15pm”

  • On 27 January 2006, C was still asleep at 10:00, when she normally awoke at 06:30. Her mother woke her, and found her to be ill and lethargic. Her parents took her back to hospital for her follow up.
  • Dr Roe saw her at 14:30 and recorded as follows:

“Reviewed

Better

Drinking a little  Wet nappies

Still lethargic ++

On examination: awake and alert

            Chest – clear

            Pulse 120 Respiratory rate 28

            Throat not examined

            Impression: Resolving viral illness

Home

No follow up”

  • C’s condition did not improve. She had a high temperature on 28 January 2006.
  • On 29 January 2006, her mother had to wake her. C vomited when her mother attempted to administer medicine. C’s mother called the hospital to ask whether she could come back in but was told to wait. She saw another GP, who thought it might be an ear infection, and changed the antibiotic.
  • On 30 January 2006, C was seen by another GP who was concerned it might be meningitis and arranged for C to be seen at A&E.
  • Having been seen in A&E, C was admitted to paediatric ward at 14:20. Her parents requested a lumbar puncture (LP), but this was not done.
  • The following morning (31 January), C’s parents felt she had deteriorated and was twitching. Dr Roe saw C at 10:00. He still thought the likely diagnosis was tonsillitis, but in light of the deterioration, he considered an LP was appropriate. Bacteria were seen in the CSF, leading to a diagnosis of partially treated meningitis.
  • C’s condition deteriorated further. On 8 February 2006, her smile appeared “wonky”, and she was having trouble with her right arm. On 11 February, C’s parents were told she had had a stroke.
  • The agreed medical evidence was that as a result of pneumococcal meningitis C developed vasculitis, leading to an infected perforator infarction with adjacent oedema, involving her left basal ganglia. The infarction probably occurred between 7 and 9 February 2006. She was left with right hemiparetic cerebral palsy with neurological deficit.

The Issues

There were various issues of fact which fell to be determined, including whether there was neck stiffness on 26 January, and how alert C was throughout that day. The judge found that there was no clinical neck stiffness, and that although C was unresponsive to pain when injected by the GP, and arguably unresponsive in the ambulance, that, by the time she was examined in hospital (having been given antibiotics and Calpol), she was alert.

In their joint statement, the expert microbiologists agreed that C was suffering from both a viral tonsillitis and a pneumococcal bacteraemia, and that various of her symptoms were non-specific and could be attributed to either illness. However, they agreed that symptoms of floppiness and having a glazed expression could not be accounted for by viral tonsillitis and were consistent with pneumococcal bacteraemia. The Defendant’s expert was nevertheless of the view that these symptoms were not caused by pneumococcal bacteraemia, but by a high temperature.

On balance, the judge found (preferring the evidence of C’s expert) that C’s floppiness and glazed expression on 26 January were attributable to pneumococcal bacteraemia, and that the clinical improvement was down to the antibiotics.

The Judgment

The judge performed a helpful review of various clinical textbooks and guidelines. In relation to guidelines or toolkits that were not yet in place at the material time, he did consider them, but only on the basis that compliance with such guidelines would be evidence of the absence of negligence.

The judge recognised that the central question was whether the SHO and the Consultant on 26 January 2006 should have suspected that C had a serious bacterial infection so as to necessitate further investigations (including LP) and administration of intravenous (IV) antibiotics. This required an assessment of the weight to be attached to the findings made by the GP compared to those made in the hospital, in the context of the medication that had been provided.

It was found that the care by the SHO did not fall below the standard of a reasonably competent SHO. The plan which she formulated for admission and observation was reasonable. The level of observation thereafter was not reasonable, but was not causative of harm.

The judge carefully considered whether Dr Roe’s examination at 18:40 on 26 January 2006 was substandard. Whilst it was not unreasonable for Dr Roe to diagnose tonsillitis, he also had a duty, against the earlier findings of the GP, to rule out a serious bacterial illness. The earlier findings of possible photophobia, poor feeding, floppiness, lethargy, vacant expression, vomiting and high fever (at a level above that ordinarily associated with tonsillitis) are all identified by the textbooks as being associated with meningitis, and are not typically associated with tonsillitis.

The judge accepted the evidence of the Claimant’s expert paediatrician (Dr Ninis) that the only safe way to proceed was to perform an LP. The balance of evidence also suggested that IV antibiotics should have been administered, either the same day, or once pneumococcus had been cultured from the CSF within 24 hours.

At paragraph 116-117, the judgment reads:

“Once it is appreciated that there were signs of bacterial infection then not only did the textbooks mandate the use of intravenous antibiotics, the clear balance of risk pointed in that direction. There were potential disadvantages to their use if it turned out that they were unnecessary: they would commit C to staying in hospital rather than allowing her to be discharged home, they can have minor side-effects (commonly rash and diarrhoea) and inappropriate prescription is a major cause of antibiotic resistance. However, these potential disadvantages were limited. As against that, the potential disadvantages of not prescribing antibiotics if it turned out that C did have a serious bacterial infection were very significant, as the events of this case show […]

“Accordingly, assessed against the background of the textbooks and scientific literature of the time, and without reference to the guidance that was subsequently provided by NICE and by the Thames Valley & Wessex Screening Tool and by the UK Sepsis Trust screening tool, I consider that the standard of medical care fell below that which was required.”

The judge was unimpressed by the suggestion of the Defendant’s counsel that, if C’s case succeeded, it would have wide-ranging implications for the practice of paediatrics and the NHS, requiring more widespread use of admission, IV antibiotics and LP.

Causation was agreed between the parties, and therefore, the finding of breach on 26 January 2006 was determinative.

Learning Points

Whilst all such cases turn on their own facts, there are general points of interest to be drawn out from the judgment.

The judge placed a lot of emphasis on the guidance in place at the time in the leading paediatric textbooks, and the APLS training materials that were in place at the time. He referred also to NICE guidelines which post-dated the index events as a safety net, working on the basis that if the care fell within those guidelines, it was unlikely to be negligent.

It is often the case that experts (unless prompted) place more weight on their own experience and less on the literature. In cases such as this, and where eminent and experienced experts disagree, it is all the more important that there is material the Court can look to which is objective. It is advisable when instructing the experts to request a full literature review, particularly in reference to such materials as were available at the time of the alleged negligence.

The other key point is that the diagnosis of tonsillitis was not, in itself, wrong or negligent, but it did not, when carefully considered, properly explain all the signs and symptoms that were present. It will often be the case that a serious bacterial infection will ‘piggy-back’ on a less serious or resolving viral illness, as in this case, and on balance that is something the defendant clinicians failed to consider. In meningitis cases where a less serious illness is suspected or diagnosed in the first instance, the key question will be whether, in all the circumstances, that diagnosis can be maintained.

Isaac’s book, ‘A Practical Guide to Sepsis and Meningitis Claims’ is available here [http://www.lawbriefpublishing.com/product/sepsisandmeningitisclaims/]

Current Affairs, Duty of care, Legal reform, Medical ethics

Standard of care in a clinical setting during the Covid-19 crisis

In this article, Isaac Hogarth 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.

Introduction

The Coronavirus pandemic is putting an unprecedented strain on NHS services, and on the healthcare professionals providing those services. In addition to the fact that doctors and nurses are facing a personal risk of exposure to Covid-19, in many cases without proper personal protective equipment, doctors are also being required to work outside of their own specialisms in order to enable sufficient cover of Covid, medical, A&E and ICU wards. Whilst the BMA has advised its members not to accept redeployment outside of their competence, in the present crisis, it may be the case that individual doctors have little choice (or feel that they have none).

This raises important questions about the standard of care to which those doctors will be held where they may lack the training or experience that would otherwise be expected. These questions are important both from a patient perspective (in terms of the standard of care they receive) and from a doctor perspective (in terms of knowing what is expected of them). One can easily anticipate the sorts of issues that could arise in an acute setting: missed heart attack, stroke or sepsis, or a failure to diagnose a fracture. What then is the applicable standard of care for a paediatric trainee required to work on an adult respiratory ward? Or a radiologist required to work a shift in A&E?

The law on standard of care

The starting point when considering standard of care in a clinical negligence claim will usually be the test set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582: was there an act or omission which fell below a proper standard according to a responsible body of medical opinion within the field? The law of tort does not generally make allowances for whether a tortfeasor is experienced or a beginner, as in the learner driver case of Nettleship v Weston [1971] 2 QB 691. But can the court make allowances for the particular experience of the individual doctor?

The higher courts have considered the question of whether the experience of the individual doctor can be taken into account when determining if an act or omission constituted a breach of duty. In Wilsher v Essex Area Health Authority [1987] QB 730 (which went to the House of Lords on a separate point), the Court of Appeal had to consider the standard to which a junior doctor, who inserted a catheter into a vein rather than an artery, should be held. There were three alternative arguments on standard of care put before the Court:

  • The “team” standard, whereby each person who formed any part of the specialised team would be held to the standard of being able to perform the specialised procedures the unit set out to perform. The Court dismissed this standard, stating “If it seeks to attribute to each individual member of the team a duty to live up to the standards demanded of the unit as a whole, it cannot be right: for it would expose a student nurse to an action in negligence for a failure to possess the skill and experience of a consultant.”
  • That the junior doctor ought to be judged to the standard that would reasonably be expected of him with regard to his individual formal qualifications and practical experience. This formulation is of particular interest in the present circumstances. The Court of Appeal rejected this formulation on the following basis:

“If correct, this proposition entails that the standard of care which the patient is entitled to demand will vary according to the chance of recruitment and rostering. The patient’s right to complain of faulty treatment will be more limited if he has been entrusted to the care of a doctor who is a complete novice in the particular field (unless perhaps he can point to some fault of supervision in a person further up the hierarchy) than if he has been in the hands of a doctor who has already spent months on the same ward: and his prospects of holding the health authority vicariously liable for the consequences of any mistreatment will be correspondingly reduced.

To my mind, this notion of a duty tailored to the actor, rather than to the act which he elects to perform, has no place in the law of tort.

…

 To my mind, it would be a false step to subordinate the legitimate expectation of the patient that he will receive from each person concerned with his care a degree of skill appropriate to the task which he undertakes, to an understandable wish to minimise the psychological and financial pressures on hard-pressed young doctors.”

  • That the standard be based not on the individual doctor, but on the post they fulfil. It was put as follows: “In a case such as the present, the standard is not just that of the averagely competent and well-informed junior houseman (or whatever the position of the doctor) but of such a person who fills a post in a unit offering a highly specialised service. But, even so, it must be recognised that different posts make different demands. If it is borne in mind that the structure of hospital medicine envisages that the lower ranks will be occupied by those of whom it would be wrong to expect too much, the risk of abuse by litigious patients can be mitigated, if not entirely eliminated.”

The third of these tests was adopted, and has since then been the applicable legal test when determining standard of care.

It should be noted that, whilst Mustill LJ refers to the need to make allowance for “battle conditions” where an emergency may overburden the available resources, that is a means of making allowances for errors made by an overstretched clinician with too much to do (“because their attention was distracted by having to do something else at the same time, or because they had to take a difficult decision on the spur of the moment”) rather than changing the standard to allow for cross-cover that would in ordinary circumstances be totally inappropriate.

Wilsher has twice been revisited by the higher courts in recent years, firstly by the Court of Appeal in FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334, and then more recently by the Supreme Court in Darnley v Croydon Health Services NHS Trust [2018] UKSC 50.

In FB v Rana, a pneumococcal meningitis case, the claimant was a 13-month-old child who attended A&E having been unwell for 11 days. A junior doctor took a detailed history, but that history did not elicit the fact that the claimant’s eyes had been rolling, which it was agreed between the experts would have led to more senior review, IV antibiotics, and would have resulted in a full recovery. The key legal question was the standard at which a Senior House Officer (SHO) was required to take a history in A&E, the judge having found that a more experienced doctor would have asked more specific questions and successfully elicited the key fact.

In her leading judgment, Thirwell LJ stated that what the Court is concerned with in any given case is the particular “task” being performed: “whether it be the delivery of a baby, the examination of a patient, the performing of surgery, the taking of a history and so on”. In her judgment, the standard of competence required in relation to any given task would be the same, whether it is performed by a junior doctor or a consultant. As such, the Court of Appeal concluded that the same facts ought to have been elicited by an SHO as by a consultant, because there is only one standard in relation to each medical task.

Whilst it was not appealed (most probably because the Court also made clear that, even judged by the standard of a reasonably competent SHO, the history was negligent), this judgment has introduced a slightly different test to that set out in Wilsher, where the Court of Appeal had specifically rejected the “team” standard, and settled on a standard judged by the post being fulfilled (with such posts being related to seniority).

In Darnley v Croydon, the claimant had sustained a head injury. He attended A&E and was wrongly informed by a receptionist that he would not be seen for four to five hours, when in fact he would have been seen by a triage nurse within 30 minutes. He went home, collapsed and suffered permanent brain damage. Whilst the receptionist was not a clinician, the Court still considered the question of standard of care. Having made explicit reference to the test in Wilsher, Lord Lloyd-Jones JSC restated the test as follows:

“A receptionist in an A & E department cannot, of course, be expected to give medical advice or information but he or she can be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance. The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care.”

That confirms beyond any doubt that the relevant standard of care is judged by reference to the post held by the person who is said to have been negligent.

Consideration of established principles in the context of Covid-19

In the present crisis, for reasons that are understandable (namely higher numbers of adult medical and ICU patients, combined with insufficient staff numbers to cover those wards), doctors who do not normally treat adult medical, A&E or ICU patients are being asked to do so. Anecdotally, this includes doctors who do not generally treat on medical wards at all, such as radiologists and psychiatrists, as well as surgeons being asked to cover medical wards and paediatricians being asked to cover adult wards (albeit that according to NHS England guidance “all redeployed doctors should be appropriately supervised when delivering clinical care”). To state the obvious, it is not only Covid patients who are being treated by these doctors, but also adult patients in general. Doctors who have not done general medical or A&E cover since the very early years of their training may be required to recognise and treat medical emergencies such as strokes and heart attacks, without any or any recent experience in doing so. As noted above, 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.

The NHS has attempted to guard against this by introducing a series of “COVID-19 rapid” guidelines, some of which are specifically designed for doctors acting outside their own area of specialism. The courts will doubtless be asked to reconsider in the present context whether the Wilsher test can be fair or appropriate when, even exercising reasonable care and skill, doctors and NHS trusts will (in some cases) have been unable to staff wards with suitably experienced medics. It is therefore all but inevitable that defendant trusts will seek to re-argue the second of the tests suggested in Wilsher (i.e. the clinician should be judged with reference to their qualifications and experience) in the context of these Covid-19 cases. The reason for this is obvious: it would enable the Court to make allowance for the fact that a gynaecologist covering A&E might be slower to spot meningitis than an Emergency Medicine consultant.

There are two major problems, however. The first is that (as has been recognised by the Courts in the aforementioned cases), as a matter of generality, a patient’s legitimate expectation in relation to their standard of care ought not to be impacted by the question of their treating doctor’s experience or training. It is otherwise the case, as considered in Wilsher, that a patient’s right to complain will be less if he has been treated by a novice than if he has been treated by an expert. The second is that, as the present law is a common law test that has been carefully formulated by the higher courts (and especially as it has recently been restated by the Supreme Court), it is probably the case that in order to depart from it for reasons of policy, Parliament would be required to legislate. This is particularly likely considering Parliament’s willingness to legislate (with some efficiency) on Covid-related matters in passing the Coronavirus Act 2020. As a matter of general jurisprudence, it should be for Parliament rather than the Courts to legislate in response to an emergency situation. It is notable that whilst the Coronavirus Act contains provisions to ensure that redeployed health workers are indemnified (see section 11(3)(b)), is does nothing to alter the standard of care under which they are required to operate.

It is suggested that any such legislation should be narrow in its terms so as not to curtail important patient rights. Doctors who are fulfilling these posts will still be capable of negligence, even when judged in reference to their own experience. One can easily anticipate claims arising from sepsis, strokes and heart attacks (for example), all of which have extremely accessible treatment protocols which should be readily on hand for anyone on an acute or A&E ward. Patients who suffer harm in such circumstances should not be shut out from bringing claims on account of the current crisis in cases where obvious textbook signs and symptoms were missed (any more than they would be in a non-Covid scenario but in circumstances where one might have sympathy with the treating doctor for some other reason: i.e. the treating doctor had just worked a week of night shifts, or had recently returned from parental leave).

There may be a question as to whether retrospective legislation impacting upon the rights of patients is contrary to their human rights. This is a stand-alone topic worthy of its own consideration, but I would suggest that there would be a sufficient public interest in such legislation (in order to protect the NHS and healthcare workers within it) that retrospective effect would be justified.

Unless or until such legislation, however, the Courts will be bound by the authorities. That being the case, any legislation which is anticipated should be made sooner rather than later in the interests of clarity.

Breach of duty, Current Affairs, Duty of care, Editorial messages, Legal reform, News

COVID-19 and Clinical Negligence Claims

Here, Henry Charles, Michael Brace and Lizzie Boulden explain why they consider that COVID-19 related clinical negligence claims arising out of redeployed healthcare professionals are unlikely to succeed on the present law. This should provide considerable comfort to healthcare professionals who are not only bravely risking their lives, but who are also working in unfamiliar roles in the national effort to fight the pandemic.

We acknowledge and applaud the brave and selfless work being done by support staff, nurses and clinicians. Neither they nor the NHS should be looking over their shoulders for claims in these difficult times. The emergency powers provide for indemnity for personal injury claims in tort arising out of the current circumstances [1]. However, whilst there are presently no claims, it still leaves the providers of the indemnities i.e. NHS Resolution, private hospitals and others exposed, and the clinicians, nurses and support staff would still be faced with the burden of a claim if one was brought.

Sadly, we hear that some lawyers may be trying to create interest in clinical negligence claims arising out of COVID-19, in particular, we presume, from the redeployment of clinicians and nurses, and the use of junior clinicians and nurses and support staff offering related services in more senior or very different positions. We suggest that those claims are likely to fail, and rightly so, even without any change in the law.

It is worth pointing out that, even before we get to the legal principles likely to protect clinicians in these circumstances, there is, in any event, little scope for clinical negligence claims in this period. Treating COVID-19 patients and preventing transmission of the virus are the priority: elective surgery had been cancelled until last week, A&E admissions are said to be decreased, and the general public is wary of attending medical institutions due to fear of virus spread combined with a desire to ease the burden on the NHS. Quite rightly, the public is aware that the NHS is working in difficult and unprecedented times.

Why COVID-19 related claims are likely to fail on the current law

We would suggest that a “triple lock” of three legal principles are available to be deployed which give considerable comfort: the “rescuer principle”, a potentially modified standard of care in relation to COVID-19 wards, and the “Act of God” principle.

Let us take an example where it is feared that proceedings could successfully be pursued. Assume the case of a consultant psychiatrist who has to be deployed to A & E because otherwise there would be no medical cover; however, the psychiatrist has not worked in A & E for 30 years. A patient is wrongly triaged and suffers a worse outcome than s/he would otherwise have done. In ordinary terms, there has been Bolam negligence.

The starting point is that any patient in a hospital is owed a duty of care. The issue is the standard of care required. The issue of the experience of the clinician in relation to the standard of care to be expected in his or her given role has occupied the Courts for many years. In Wilsher v Essex Health Authority [1987] Q.B. 730, it was held that the length of experience of the clinician was not relevant, and the duty of care related not to the individual but to the post they occupied. A houseman had failed to reach this standard by failing to notice a patient’s spitting and pooling of saliva, in simply accepting what the patient’s representative said and failing to obtain a proper case history, thereby failing to elicit details of a difficulty in swallowing which would reasonably have required him to detain the patient pending examination by an ENT specialist. It was probable that such further investigation would have revealed the condition and that treatment at that stage would have avoided brain damage.

In FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334, the Court of Appeal overturned Mr Justice Jay’s decision that only a senior doctor would have had the expertise to apprehend the claimant’s developing problem. At paragraphs 59-60, Jackson LJ noted:

“59. In Wilsher v Essex AHA [1987] 1 QB 730 the Court of Appeal for the first time gave detailed consideration to the standard of care required of a junior doctor. (This issue did not arise in the subsequent appeal to the House of Lords). The majority of the court held that a hospital doctor should be judged by the standard of skill and care appropriate to the post which he or she was fulfilling, for example the post of junior houseman in a specialised unit. That involves leaving out of account the particular experience of the doctor or their length of service. This analysis works in the context of a hospital, where there is a clear hierarchy with consultants at the top, then registrars and below them various levels of junior doctors. Whether doctors are performing their normal role or ‘acting up’, they are judged by reference to the post which they are fulfilling at the material time. The health authority or health trust is liable if the doctor whom it puts into a particular position does not possess (and therefore does not exercise) the requisite degree of skill for the task in hand.

60. Thus in professional negligence, as in the general law of negligence, the standard of care which the law requires is an imperfect compromise. It achieves a balance between the interests of society and fairness to the individual practitioner.”

That view was reiterated in the context of the facts of the case at paragraph 63: “The conduct of Dr Rushd in the present case must be judged by the standard of a reasonably competent SHO in an accident and emergency department. The fact that Dr Rushd was aged 25 and “relatively inexperienced” (witness statement paragraph 5) does not diminish the required standard of skill and care. On the other hand, the fact that she had spent six months in a paediatric department does not elevate the required standard. Other SHOs in A&E departments will have different backgrounds and experience, but they are all judged by the same standard.”

The law thus requires a standard no higher, and no lower, than a reasonably competent healthcare professional of the role which is being fulfilled.

The “triple lock”

Having considered the existing formulation of the standard of care in clinical negligence cases, we will turn to consider how the law allows for variations in the standard of care, as well as other protections, which we suggest would apply to the current emergency circumstances.

(1) The “rescuer principle”

The “rescuer principle” is a term that we use to indicate modifications to the standard of care which arise from the fact that currently redeployed NHS healthcare professionals are acting for the public good in the face of an emergency. In essence, this principle allows for a relaxation of the standard of care where individuals are working in an unprecedented emergency; its purpose being to prevent a fear of liability acting as a brake on such activity.

The legal source of this principle is the Social Action, Responsibility and Heroism Act 2015. Section 1 of the Act states that it applies “when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care”. Sections 2-4 detail matters which the court must have regard to, relating to the circumstances of the alleged breach of duty: whether it occurred when the person was acting for the benefit of society or any of its members, whether the person demonstrated a predominantly responsible approach towards protecting the safety or other interests of others, and whether that person was acting heroically by intervening in an emergency to assist an individual in danger. It is suggested that all 3 of these criteria are met in the situation of healthcare professionals redeployed during the COVID-19 crisis; it is difficult to contemplate how this Act would not apply to the current circumstances.

Assistance can also be drawn from section 1 of the Compensation Act 2006, which provides that, when considering breach of duty, the court may have regard to whether the steps that should have been taken by the defendant to meet a standard of care might either prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or discourage persons from undertaking functions in connection with a desirable activity. Whilst this does not strictly apply to the current circumstances, in that healthcare professionals clearly do not fail to carry out desirable activities in respect of treating patients, it does give a clear indication that the standard of care has limits. It suggests that in certain cases, the rights of individuals to be compensated for their loss is trumped by the necessity of defendants not being deterred from carrying out important activities. It is submitted that again, this is applicable to the situation at hand.

This principle has also appeared in case law, for example in Marshall v Osmond [1982] Q.B. 857, which involved a police officer whose driving caused injury to a passenger of a vehicle he was pursuing. In the first instance decision in this case, it was held that the defendant’s “actions must not be judged by standards which would be applicable if the situation were such that the officer had time to consider all possible alternative courses of action that he could have taken to discharge his duty successfully“. The Court of Appeal ([1983] Q.B. 1034) upheld the first instance decision, finding that there had been an error of judgment, but considering that there was not negligence. Sir John Donaldson M.R. referred to the circumstances of the collision, including that the officer was working in stressful circumstances. Therefore, it is suggested that, as per the case of Marshall, in the hypothetical scenario of the psychiatrist incorrectly triaging a patient, this is more likely to be seen as a mere error of judgment.

(2) Modified standard of care in relation to COVID-19 wards

Looking at the case of Wilsher v Essex Health Authority, arguably the principle of healthcare professionals being “judged by reference to the post which they are fulfilling at the material time” may acquire a particular definition in relation to the treatment of COVID-19 patients.

COVID-19 wards are new entities, and are necessarily staffed by practitioners from  different original specialisms. Whilst these wards may have started as respiratory wards, in the circumstances of the pandemic, particular experience or specialism is not required in order to work there. These wards have been in existence only a matter of weeks, and therefore, understandably, do not have the same reservoir of expertise which would be relevant to the standard of care in say, a specialist oncology ward. Further, whilst the standard of care to be expected would be influenced by accepted practice or treatment policy in the area, it is clear that there is much disagreement within the scientific community regarding this new virus. Therefore, in legal terms, the standard of care is likely to differ for a COVID-19 ward when compared to another specialist ward, and, in practical terms, it may well be a challenge for anyone to acquire expert evidence which expresses best practice with any certainty (there would very likely be a wide range of divergent views).

Likewise, in non-COVID wards, we suggest that comment in any expert evidence is very likely to take into account the prevailing situation. It is expected that added consideration would be given to issues about time pressures, the numbers of staff, and the increased measures needing to be taken to avoid the spread of coronavirus, for example the use of personal protective equipment (PPE).

(3) “Act of God”/Novus Actus Interveniens

Finally, there is “Act of God”, a branch of force majeure – a largely, but not entirely, contractual principle, which may alternatively viewed as a novus actus interveniens. An “Act of God” must be wholly the consequence of natural causes, be of an extraordinary nature, and be such that it would not be anticipated or provided against by the party seeking to rely on it [2]. In the law of tort, “Act of God” has been used in, for example, Ryan v Youngs [1938] 1 All ER 522, in which a lorry driver, an apparently healthy man and a competent driver, died at the wheel, the lorry then ploughing on and injuring the claimant. As to the scale of the challenge represented, it must be unprecedented or extraordinary: see Nichols v Marsland (1876) 2 Ex D1, which involved an extraordinary flood. This country has not experienced anything like COVID-19 for the last hundred years. That leaves the third hurdle that the “Act of God” could not have been provided for. In Nichols v Marsland, it was held that, although protective measures would have been capable of affording protection, the defendant could not reasonably be asked to prepare against the unprecedented. However, in respect of a hospital trust, COVID-19 may well fit within “Act of God”, whether directly or in informing the standard of the duty of care to be applied. We do acknowledge that, given a repetition of COVID-19, this argument might well crumble.

Breach of duty

None of these three principles excludes there being a duty of care. It is possible that, even within the context of COVID-19, there may still be a handful of instances of breach of duty, which, even on the most generous interpretation, would be indefensible to any right-minded person.

We also bear in mind that cases may include outcomes from a basic failure to provide for PPE, although this is unlikely to be the fault of any individual practitioner.

Modification to the test

So, to returning to our earlier example, the test becomes one of what one might expect of a psychiatrist redeployed to A&E, acting under force majeure or as a rescuer. Understandably, there would be very, very generous latitude. We would suggest that a court would have little difficulty in the vast majority of cases finding perhaps error of judgment, but not breach of duty, especially on new COVID-19 wards.  

It is also worthwhile taking a more nuanced example, one where on the face of FB v Princess Alexandra Hospital, liability is harder to avoid. Let us assume, for example, two ST3 doctors are covering a busy A & E ward with no available A&E consultant and a 33% staffing-level because of COVID-19, one of whom makes a similar error to that made in FB v  Princess Alexandra Hospital due to time pressure and evident fatigue. Let us further assume that the hospital is not guilty of any failure of resource management.  The same principles can be applied. We would suggest that, on these facts, the claim would be unlikely to succeed.

Summary

We are suggesting that in the “rescuer principle”, modification to the standard of care for COVID-19 wards, and force majeure/”Act of God”, there is a “triple lock” of established principles that should largely reduce the burden on the health services arising from clinical negligence claims in the present emergency context. The key to use of existing principles, in a way that is almost Caparo v Dickman from the other end of the telescope, is that we are in abnormal circumstances.

The “triple lock” of tests avoids the complete abrogation of standard of care – there may well be the occasional cases where something really has gone terribly and very avoidably wrong. Additionally, it would not, on public policy grounds, seem particularly sensible to abandon all standards.

Doctors, nurses and other healthcare professionals are facing enough uncertainty in these challenging times, without the fear of their actions being unfairly judged in the future. Hopefully, some comfort can be gained from the notion that the current law provides them with these protections.

[1] Very broadly, section 11, Coronavirus Act 2020 provides for indemnification not only for those not already beneficiaries of an NHS indemnity who are dealing with a coronavirus patient/suspected coronavirus patient, but also those providing cover.

[2] Charlesworth & Percy on Negligence, 14th Edition, at 14-36

Breach of duty, Duty of care

ABC v St George’s Healthcare NHS Trust & Ors [2020] EWHC 455 (QB)   Does a doctor owe a duty of care to disclose a hereditary disease to a patient’s child?

In this post Helen Waller of 12KBW discusses Mrs Justice Yip’s dismissal of a claim that sought to establish that a doctor owed a duty of care to disclose a patient’s hereditary disease to his child.

An earlier appeal of a strike out application in this tragic case has already been reported on by Rachit Buch of 12KBW. That report can be found here:

The Factual Background

In brief summary of the facts, the father, XX, had killed the claimant’s mother in 2007, for which he was made subject of a restricted Hospital Order pursuant to the Mental Health Act 1983 following a conviction for manslaughter by reason of diminished responsibility. It transpired that XX had Huntington’s disease, a hereditary choreic syndrome. XX made it clear that he did not want the claimant and her sister to know. This remained true when XX learnt that the claimant was pregnant. XX knew that his status meant that the claimant might have Huntington’s disease and her unborn child also. He was aware that this might influence her decision about whether to continue with the pregnancy. Continue reading “ABC v St George’s Healthcare NHS Trust & Ors [2020] EWHC 455 (QB)   Does a doctor owe a duty of care to disclose a hereditary disease to a patient’s child?” →

Breach of duty, Causation, Duty of care, Expert Evidence

“But for” vs Material Contribution and the burden of proof – Andrews v Greater Glasgow Health Board [2019] CSOH 31

In this post Vanessa Cashman of 12KBW examines the recent decision of Lord Pentland [siting in the Outer House of the Scottish Court of Session] in Andrews v Greater Glasgow Health Board [2019] CSOH 31.

Summary

The deceased attended hospital with vomiting and diarrhoea, both black in colour and was discharged with a diagnosis of gastroenteritis. She was taken back to hospital the following day where extensive necrosis of her bowel was discovered. She died the next day.

Breach of duty, principally in relation to whether she should have been admitted on her initial attendance, and causation were in issue. D’s case on causation was that C couldn’t prove when her acute deterioration occurred and therefore couldn’t prove that admission would have prevented her death.

The Court considered the relevant test for causation and considered that both “but for” causation and the material contribution test were satisfied.

Continue reading ““But for” vs Material Contribution and the burden of proof – Andrews v Greater Glasgow Health Board [2019] CSOH 31” →

Breach of duty, Duty of care, Expert Evidence

Early Chemo-prophylaxis in Neurosurgery and The Battle of The Experts: Lesforis v Tolias

In this post Daniel Sokol of 12KBW examines the recent decision of the Court of Appeal in YVONNE LESFORIS v CHRISTOS TOLIAS [2019] EWCA Civ 487.

In May 2018, Mr Justice Spencer found that Mr Christos Tolias, a consultant neurosurgeon, had been negligent in giving his patient heparin too early following spinal surgery. This led to the patient suffering a haematoma which, in turn, compressed the spinal cord and resulted in incomplete paraplegia.

Mr Tolias obtained permission to appeal on a single ground: that the judge failed to address the key question, namely whether giving antithrombotic medication to this particular patient within 3 hours of surgery was a breach of duty.

The appeal was dismissed.

Continue reading “Early Chemo-prophylaxis in Neurosurgery and The Battle of The Experts: Lesforis v Tolias” →

Breach of duty, Causation, Duty of care

Caparo is no panacea and hospitals’ duties are owed by medical and non-medical staff alike: Darnley v Croydon Health Services NHS Trust [2018] UKSC 50

This blog is by Helen Waller of 12 King’s Bench Walk.

Is an NHS Trust liable in negligence for the acts or omissions of its administrative staff? The Supreme Court provides an answer: a unanimous yes. Continue reading “Caparo is no panacea and hospitals’ duties are owed by medical and non-medical staff alike: Darnley v Croydon Health Services NHS Trust [2018] UKSC 50” →

Breach of duty, Duty of care, Informed consent

Surgical consent case report: materiality of risk – Montgomery vs Bolam

B v An NHS Trust

Isaac Hogarth of 12KBW instructed by Joel Onyems of OP Law (representing the Claimant) discusses a recent case which settled at JSM. The case is of particular interest due to the arguments concerning the objective nature of the test of materiality under Montgomery v Lanarkshire Health Board [2015] UKSC 11 and its interplay with Bolam principles.

Continue reading “Surgical consent case report: materiality of risk – Montgomery vs Bolam” →