By Byron Austin
Clinical negligence remains one of the more politically and morally controversial areas of law in the UK, with some professionals arguing that the NHS should not be liable for some clinical negligence claims in these unprecedented times. Bodies such as the MDU have been petitioning for this, and it is clear to see why, when In 2018, estimates were at £83.4 Billion for NHS liability to clinical negligence claims. This staggering number is only set to rise due to the pressures the NHS faces, which will inevitably cause a change in the quality of care and resources available. However, it must be remembered that the law regarding Clinical Negligence is not designed to punish the medical practitioner responsible, but as a way of compensating the claimant for their loss/Injury. Leaving claimants with no remedy for their loss would create moral complications and arguably undermine the purpose of compensation/ the claims process.
There are three basic elements for a successful claim under the tort of negligence in a clinical setting. There must be a duty of care owed to the patient by the practitioner. The standard of care expected must be of a reasonable amount of care and skill. Next, they must breach this duty, by allowing their standard of work to drop below what is acceptable. Finally, the breach must have a causal link to the damage suffered (Causation).
Standard of care
The Bolam v Friern Hospital Management Committee case established the principle that there is no negligence on the practitioner’s behalf, if they have acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Although this has been accepted in numerous supreme court cases, Bolitho v City & Hackney Health Authority did somewhat alter this.
Lord Browne-Wilkinson stated: “The court has to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis. In particular, in cases involving, as they so often do, the weighing up of risks against benefits, the judge before accepting a body of opinion as being reasonable, responsible or respectable will need to be satisfied that, in forming their views, the experts have directed their minds to the questions of comparative risks and benefits and have reached a defensible conclusion on the matter.”
In essence, this judgment gives the court some discretion when considering whether a code of practice, or a specific act by the defendant in a medical negligence case is logical. It opens the expert witness to some judicial scrutiny and allows for a judge to deem something to be negligent, even with the support of a medical body of opinion.
There is not a ‘one size fits all’ standard of care expected by medical practitioners. The care given can vary massively and is based on the facts before the medical practitioner. Sometimes there are multiple ways to treat the same condition, which means that even if 2 people have the exact same injury, 2 different doctors could both treat it in different ways, and both would be acceptable. As such, the courts don’t always look at the treatment given alone, they consider the context in which this was done. Green J sums this up very neatly, in Mulholland v Medway NHS Foundation Trust  EWHC 268 (QB). He said at : “In forming a conclusion about the conduct of a practitioner working within triage within an A&E Department context cannot be ignored. The assessment of breach of duty is not an abstract exercise but one formed within a context.”
This very clearly shows that the courts are willing to take the whole situation into account, rather than the simple fact that the standard of care dropped below the acceptable level. Sometimes, the context itself can alter the standard of care expected.
For example, during this pandemic, doctors and nurses are working more strenuously, and with very limited resources. As such, the courts may not impose as strict a duty of care or may consider the context in which the breach of this standard occurred more than if the situation was not that of a pandemic.
As the number of Covid-19 patients peaked, the hospitals were forced to divert their time to caring for them, from other areas. This caused many cancer patients to have delayed diagnosis, treatment or even have their surgeries postponed. With 200,000 less people are being screened per week for some cancers and the lack of recovery beds, it is clear to see that undoubtedly some people may unfortunately miss out on life saving treatment or on having an earlier diagnosis of cancer.
Due to the risks and susceptibility of infections/illness stemming from patients receiving chemotherapy and radiotherapy treatment, many have been told that they can not be treated at this current time. Although doctors have tried to mitigate this with more radical radiotherapy as opposed to surgery, and hormone treatment in some cases, this has not been as successful as it was intended to be. This is partly due to the redeployment of staff to cope with the overwhelming number of COVID patients, meaning that there are less staff on hand to administer this treatment.
Furthermore, less staff are doing administrative work, meaning that doctors trying to treat cancer patients are always not fully informed of the medical history of the patient, causing many complications and delays. Even when the doctors have the medical history at hand, assembling a multi-disciplined team to give the best care possible is nigh on impossible due to the diverting of many staff members.
The courts reaction to claims stemming from this may be similar to what was demonstrated in Morrison v Liverpool Women’s NHS Foundation Trust  EWHC 91 (QB). Turner J at  said: “Of course, in the clinical context a balance has to be struck between the needs of any given patient and any other competing professional demands placed upon the clinicians involved. The needs of the patient must be deprioritised to allow the clinicians to attend other demands on their time of as a matter of priority.”
This shows us that other patients and obligations/duties form the context in which the court considers any possible negligence. The redistribution of resources and staff to deal with this pandemic will no doubt give some buffer or mitigation to the NHS staff should a claim be brought under the circumstances they face.
As a direct result of the diverting of staff, many doctors and nurses are having to work outside of their area of specialism. This of course, has caused the standard of care to drop as the practitioner in question will be dealing with a situation or condition that they have little or no experience in. However, the lack of experience of knowledge in a field is not a reason to lower the standard of care expected, as was seen in FB v Princess Alexandra Hospital NHS Trust (2017). Now although this case is that of a junior doctor, it is reasonable to expect that the principle would be adhered to by the courts when looking at a fully qualified doctor who is practicing outside their field of expertise.
Leaving potential claimants with no remedy, simply because the NHS is facing a crisis is not always justified. Although the courts are willing to consider the situation and context in which the breach of duty occurred, simply giving practitioners a ‘free reign’ to be negligent is not an approach that the courts are willing to take. Liability for clinical negligence will no doubt be mitigated in the current climate by the challenges the NHS face.