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What are the possible hurdles in pursuing a medical negligence claim in relation to COVID-19?

2021-02-01

Introduction

After a year’s battle against the unprecedented pandemic, the proposed mass COVID-19 vaccinations appear to be the light at the end of the tunnel. Complaints in relation to the public health and clinical negligence could rise in the wake of the pandemic. Under this context, what must be proved when bringing a negligence claim against medical practitioners in relation to COVID-19? What are the possible hurdles?

What are the possible hurdles in pursuing a medical negligence claim in relation to COVID-19?


Legal principles

It is trite law that a plaintiff must establish the following four elements in order to succeed his claim in medical negligence.

1.     Duty of care

In Hong Kong, to bring a medical negligence claim, the courts will first establish whether a “duty of care” exists. It is commonly recognized that medical professionals owe a duty of care to everyone they treat.

2.     Damages

The plaintiff must have suffered injury in the care of the medical practitioner.

3.     Breach of duty

The medical practitioner must have breached his duty by failing to exercise the degree of care or skill that a reasonable professional would have applied in a similar circumstance. In determining whether a breach of duty has occurred, the Court will exercise the Bolam test, considering: -

1.        What is the “responsible body” in this scenario?

2.        Would it be general surgery or a respiratory physician?

3.        What practice is accepted as “proper” or “reasonable” in a pandemic?

In the meantime, the courts will consider the Montgomery test which creates a duty of care for medical professionals to disclose and warn all material risks to the patients. However, new factors and circumstances may be taken into account by the courts in relation to COVID-19.

4.     Causation

Finally, the courts will look at causation to determine whether the actions of the medical professional caused the injury or death. The onus of proving causation is on the injured party.

The conventional approach is the “but for” test that the injured party would not have suffered injury but for (without) the negligence on the balance of probabilities. However, normally there may be several causes to the injury, especially in medical negligence cases. In such cases, the court will consider:

1.        Whether the defendant’s breach of duty a necessary element in the chain of causation?

2.        Whether the defendant’s breach of duty materially contributed to the injury?

3.        Whether the defendant’s conduct exposed the injured party to an added risk of harm?

Proof of the injury/death that the medical negligence caused is necessary, which can come in various forms including medical records, correspondence records, financial records, death certificates and more. In this connection, the type and extent of the damage caused will determine the compensation.


Possible hurdles related to claims on infectious diseases

While the above legal principles in respect of medical negligence claim appears to be well settled, there are indeed various hurdles in proving the same in reality, particularly in cases concerning infectious diseases.

1.     Standard of duty

The case Pope v NHS Commissioning Board [2015] 9 WLUK 380 sheds light on how the Court considers an infectious disease-related medical negligence. In that case, during the swine flu (H1N1) pandemic of 2009, the patient suspected that she had contracted the same. She attended medical consultation at a local healthcare centre and was examined by a nurse. The nurse merely advised the patient to return home and rest. Two days after, the patient suffered from cardiac arrest and was admitted to the accident and emergency department. As a result, the patient sustained brain damage which caused her profoundly disabled. Medical reports later revealed that she had indeed contracted swine flu, and her condition was complicated by pneumonia.

At trial, the Queen’s Bench Division found that the National Health Service (NHS), through the nurse being its employee, had breached their duty of care and that the breach resulted in the patient’s brain injury. Pursuant to the national contemporary guidance at the material time, any flu-like illness had to be managed as swine flu and measurement of peripheral oxygen saturation was mandatory. If the nurse had complied with the guidance, she would have measured the patient’s blood levels and referred her to the hospital.

The case above illustrates that medical practitioners should comply with the prescribed guidance, even in pandemic crisis. This should however be read together with the case Mullholland v Medway NHS Foundation Trust [2015] EWHC 268 (QB), in which the patient alleged that Emergency Department clinicians had failed to refer him to immediate Computed Tomography scan. The scan was only conducted months after, when he was diagnosed with cerebral tumour.

The Queen’s Bench Division held that there was no breach of duty and that the standard of care “must be calibrated in a manner reflecting reality”; taking into consideration the pressures and hasty nature of the Emergency Department.

Facing the unprecedented pandemic, the relevant authorities might not be able to enact an official guideline for medical practitioners overnight. Effectively, the standard of duty for possible medical negligence claims that arise from the earlier stage of the pandemic might be hard to ascertain. Further, it is uncertain as to how the Hong Kong courts would calibrate the standard of duty in light of the burdened healthcare system during the outbreak.

2.     Causation

There are two possible obstacles in proving causation: (i) a complex procedure in diagnosing COVID-19; and (ii) the patient’s inherent health condition.

The arrangement for COVID-19 viral test involves multiple procedures with various medical and healthcare institutions. Against this backdrop, it might be hard for a plaintiff to identify the real culprit of the mishap.  In early April 2020, it was reported that a Nepalese man in a Hong Kong quarantine centre who tested positive for COVID-19 was denied prompt hospital care after officials instead sent his father for treatment owing to a possible mix-up of their “similar” names. Cases as such pose difficulties in discerning the true wrongdoer of the negligence.

The issue further complicates where the patient initially suffered from chronic diseases and had been receiving ongoing medical attention and treatment. In such cases, the ultimate injury of the patient might be due to medical complications arising from the initial chronic illness. As explained above, where there are multiple causes of a plaintiff’s damage, causation requirements may only be satisfied if it is shown that defendant’s breach of duty was a material contributor to such injury. Further expert evidence is called for in identifying the material contribution of the patient’s injury.


Conclusion

While it is possible to pursue a medical negligence claim in the context of infectious diseases and outbreaks, the possible hurdles in proving the claim should not be overlooked. It is therefore prudent to seek professional legal advice in assessing the prospect of the claim.




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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2021


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