Breach of duty and corona virus: not so abstract after all

Since the start of the corona virus there has, understandably, been increased speculation about the knock-on effect to clinical negligence cases. A particular concern is whether the extra pressure placed upon NHS services and the allocation of resources will lead to a surge in claims.

The typical scenario would be a patient that attends hospital for a non-corona virus illness. There is a delay in him receiving the appropriate medical treatment which results in injury. From the Claimant’s perspective, he should have been seen, diagnosed and treated in a timely manner. The Defendant’s position is that resources were stretched and therefore it was not possible to assess him earlier.

Within this scenario the standard principles of tortious liability will continue to apply. The Claimant must demonstrate a breach of duty on the Bolamtest. It is worth revisiting what McNair J said in Bolamas regards breach of duty so as to understand its application within a specified situation:

where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.

in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards.’

McNair’s J reference to ‘at the time’ is important. It is not just a reference to the state of medical knowledge but a reference to the temporal context. A duty of care does not exist in a vacuum and breach of the same is assessed according to context. The significance of context was recognised by Green J in Mulholland v Medway NHS Foundation Trust[2015] EWHC 268 (QB) [90]:

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 – which here is that of a busy A&E where the task of the triaging nurse is to make a quick judgment call as to where next to send the patient.’

The recognition of context was again made clear by Turner J in Morrison v Liverpool Women’s NHS Trust 2020 EWHC 91 (QB) [94]:

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. Sometimes, the seriousness and urgency of a patient’s presentation and the absence of any conflicting factors will mandate a swift and decisive response. On other occasions, it is equally obvious that 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 is reflected in the defendant’s Emergency Caesarean Section Guideline which recognises that the degree of promptness with which an emergency caesarean ought to be carried out on any given patient must take into account circumstances in which other pregnancies might be thereby be exposed to undue risk.’

It is fair to say that in cases where there are time and resource pressures the wider context will be of crucial importance. However, these cases are distinct to those where the treatment received fell below the standard expected. Once a patient is seen by a clinician there is an expectation that the treatment will be in line with a reasonably competent medical practitioner. Perhaps the most controversial area will be cases where a hospital seeks to defend falling below an otherwise acceptable standard; for example, a failure to monitor a patient due to pressures from corona virus patients.

It is impossible at this stage to determine whether there will be an increase in the number of claims. It is fair to assume that cases alleging negligence brought about by limited resources due to corona virus pressures will be robustly defended. The duty of care owed in these situations is not abstract and is rooted within context.

Charles Austin