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Coronavirus Emergency and non-Covid Treatment Issues

Reasons to choose Wilson Browne

What will happen to the standard of care?

It has always been the case that clinical negligence claim will only be successful if you can prove that on the balance of probability, the treating doctor or nurse, or the hospital as a whole, breached its duty of care to you. That standard of care that a patient can expect was determined in 1957 in the case of Bolam v Friern Hospital Management Committee which decided that a doctor was not negligent “if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”. In layman’s terms, that essentially means a doctor must act in a way that is supported by a responsible body of medicine. That standard of care should not change as a result of the Coronavirus pandemic; however, every case will have to be assessed on its merits taking into account all the circumstances. What might have been considered negligent treatment three months ago might now be considered reasonable because of the measures taken in respect of the pandemic.

Emergency care

Hospitals have been at pains to point out that Accident and Emergency departments are still open for people who need emergency treatment.

In March 2020 the number of attendances at A&E fell by 600,000 compared with March the previous year. Medical leaders are concerned that people who are seriously ill may be staying away from hospital due to fear of Coronavirus.

NHS England director Steven Powis said “You should be seeking emergency services just as you always have done.  They are there for you, and, although we are focusing on coronavirus, it’s important we continue to focus on other emergency conditions”.

It would surely follow that the standard of care a patient can expect from emergency treatment should be the same as pre-pandemic. For example, it would be reasonable to assume that a patient attending hospital with a suspected stroke should still received the same life saving, time critical treatment as they would have pre-pandemic, but it will remain to be seen what attitude the medical profession and courts will take.

General Practice

General Practitioners see around one million patients every day across the UK and coronavirus presents a serious challenge to their practice.  NHS England has published guidance for dealing with coronavirus and social distancing in the general practice setting (other health authorities have published guidance for the devolved regions).  This guidance will give patients and lawyers a helpful insight into the level of care patients are entitled to expect during the pandemic when considering future claims.

The guidance, developed in conjunction of the Royal College of GPs, sets out the key principles for general practice at this time. It recommends that all patients are triaged remotely and video and telephone consultations should be utilised when possible. Importantly, access to urgent care and essential routine care should be maintained for all patients.

The British Medical Association and Royal College of GPs has developed a traffic light system to give examples of what is urgent versus what is non-essential. Green care should be provided regardless of the pandemic. Amber work should continue as time and resources allow and red category care is lower priority and could be postponed in the event of a high prevalence of COVID-19.

Examples of green category care include care for acutely unwell adults and children with COVID-19 or non-covid related illness; treatment for chronic conditions, such as COPD or Asthma; treatment for patients with significant mental health concerns regarding suicide or self-harm; and childhood immunisations.

Referrals of patients with suspected cancer symptoms should continue to be referred under the two week wait pathway but worryingly reports from The Telegraph suggest that two week wait referrals for cancer fell by 70% up to 12 April 2020. It is feared that patients are not going to see GPs with their symptoms but also that GPs are reluctant to send patients to local hospitals for fear of COVID-19 infections. Cancer Research UK estimates that over 2,300 cancers cases are going undiagnosed every week.

Cancer care

Cancer treatment should still be going ahead but non-essential follow up appointments are, reasonably, being cut or deferred and telephone and video appointments offered in other cases.

For patients at the start of their cancer treatment clinicians will have to balance the risk of not treating the cancer optimally with the risk of a person becoming infected with Coronavirus. Cancer treatments such as chemotherapy suppress a patient’s immune system, making it much easier to catch infections and harder to fight them off. In the context of a global pandemic undergoing chemotherapy carries much greater risks. Cancer Research UK also report that some hospitals are struggling to provide curative surgery because of a lack of available ITU beds.

Guidelines issued by the National Institute for Health and Care Excellence (NICE) recommend careful scheduling of appointments to minimise the time a patient spends in hospital waiting rooms and asking the patient to come to appointments on their own.

If a patient with cancer is suspected to have COVID-19 the NICE Guidelines advise only to continue with treatment if it is needed for urgent cancer control. Where possible, treatment should be deferred until the patient has a negative test for COVID-19.

NICE guidelines suggest that clinicians should consider the level of immunosuppressant and risk factors specific to the patient. NICE also acknowledges that clinical decisions will have to consider the availability of resources.

Cancer care, therefore, is likely to be one area where what constitutes reasonable versus negligent treatment will look quite different in the context of the pandemic.

Guidance in this area is fast changing and this article is correct as of 27.04.20.

Louise Tyler

Posted:

Louise Tyler

Partner

Louise is the Head of the Medical Negligence Team working in this area of law for 25 years. She is a member of the Law Society Clinical Negligence Panel, the AvMA (Action for Victims of Medical Accidents) Panel and been appointed to the Executive Committee…