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At a time when lockdown is over and restrictions are relaxing we now ask, what is the impact of this pandemic on clinical negligence claims across England and Wales? A QC Mr Nigel Poole has voiced his opinion on this matter and suggested that ‘context is all’ for example our present context will be of great significance when the Courts weigh up whether a Trust or Professional has acted negligently during the pandemic.
Mr Poole QC suggested that “the resource implications of the pandemic would…be taken into account by the Court. What would have previously been an inexcusable delay in the system, might be regarded as acceptable in the current circumstances.”
A further issue to consider is the redeployment of doctors outside their competence due to Covid impacting on the standard of care a patient has received and whether allowances or modifications are acceptable due to these unprecedented times.
A specialist clinical negligence and personal injury Barrister Mr Isaac Hogarth proposes that any such legislation should be narrow in its terms so as not to diminish important patient rights. He stated that “whilst the Coronavirus Act contains provisions to ensure that redeployed health workers are indemnified (see section 11(3)(b)), it does nothing to alter the standard of care under which they are required to operate. ”
The question of legal immunity from clinical negligence claims for doctors and others during the covid 19 pandemic has been raised by the Medical Defence Union (MDU), advocating that “doctors should be spared from the stress and anxiety of medical negligence claims following the pandemic”. This suggestion appears to overlook a patients’ rights. Dr Sokol stated within his blog “Can non-specialty doctors on covid wards still be sued?” it must be that “The expected standard of care and skill will be based on the post that the doctor is fulfilling at the time of the alleged breach,”.
It will be interesting to observe the impact of the pandemic as it unfolds within the Courts and subsequent judgements made.
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