Posted On / 02.03.2021

Clinical negligence standards and covid

Legal claims for clinical (also known as medical) negligence are often far from simple affairs.   

Despite our blame/claim culture, a mistake or a bad outcome from a procedure does not necessarily mean there is a clinical negligence claim.   

And while we manage the global pandemic of Covid-19, the questions become even more complex.  

Having appropriate standards is key to determining quality of care.  One of the first people to write about the necessary standards was Florence Nightingale.  

Florence Nightingale was keen to document the necessary standards.  In her book ‘Notes to Nursing’ in 1859, she explained the fundamentals of nursing and what was expected of a good nurse.

Clinical Negligence - What is it?  

The principles of the law of negligence will tell you if there is a legal claim.  These principles incorporate standards.   Breaking it down simply, there are three elements:  

1. The care or treatment must have been given in a professional capacity, so that there was a duty to care for the individual.  

2. That professional care must have fallen below the standard of a reasonably competent professional.   

3. The illness or injury must only have happened because of the error, or the error must have been at least a material cause. 

Types of claim  

Making claims for clinical negligence is a branch of personal injury litigation.  It encompasses claims against hospitals (both NHS and private) and also includes healthcare provided in another care setting such as GPs, dentists, cosmetic surgery clinics, pharmacists and care homes.  Whatever the setting, the three elements above must be present.  

Claims take many different forms depending on the circumstances.  However, certain factors are commonly found, such as delay in diagnosis, problems with communication and failure to follow set procedures.

Level of Service  

As stated at element (2) above, to be negligent the care must fall below the standard of a reasonably competent professional.  

This is assessed by comparing the actual service given to what is deemed to be an acceptable level of care if provided by a similar group of medically-qualified peers.   

And because there is often more than one way of approaching a medical condition, the law will review whether the chosen approach had a logical basis.  If it did, it may be considered to have been of a non-negligent standard.  

So, if the care given had a logical approach and was an approach that a group of similarly qualified clinicians would have provided, it will not be negligent.

Pandemic Effect

The pressure placed on the health service during the pandemic has been significant.  That does not, however, absolve the health service from the requirements to provide a service of the appropriate and non-negligent standard.   

That said, the strain on the NHS, the stretch on its resources and the new processes in place to cope with Covid are all factors that may have to be taken into consideration when deciding what was level of appropriate care for a procedure carried out during the crisis. 

For example, if a waiting time for an appointment is longer during the pandemic, the question of quality of care will turn on not only what was a normal waiting time given the symptoms, but on what was an appropriate waiting time given the resources available to see that patient during the pandemic.   

Also, if an appointment is only offered via a telephone discussion, there will be more scope for justifying the absence of a face to face appointment.   

In this tough, Covid-influenced environment, making sure that you get the correct service, for example a face-to-face appointment, may come down to patient pressure and persistence. That is a fact of life but it may mean that those who are not so pushy do not get the treatment they need.  Medical practitioners need to be alive to that risk, and they cannot necessarily avoid liability by saying that the patient did not seem to mind waiting.

We can help  

If you are concerned about past medical care or treatment, you can call us confidentially for advice and assistance. Discuss your concern on a no-obligation basis by contacting: Victoria Knight on 01935 846131 or email victoria.knight@battens.co.uk 

See our services for Clinical and Medical Negligence here.