In Medical Negligence Claims
Medical negligence during COVID-19

For anyone who thinks that COVID will alter the litigation landscape to the detriment of mainstream health providers, think again. The public and health professionals can rest assured that the COVID-19 pandemic is no picnic for medical negligence lawyers.

Just before Australia went into lockdown in response to the COVID-19 pandemic, I had the opportunity to present to a group of medical and legal professionals on the issue of liability for nurses, including information to assist medical staff avoid conduct which might trigger a claim against them.

Understandably, the questions of attendees were directed to liability in the context of COVID.

For many of us, the pandemic has caused us to reflect and be grateful to live in a country with a health system capable of responding to the scale of the crisis; a system which is freely accessible and which provides world class treatment based on need.

As a medical lawyer, I also feel grateful to work in a legal system which responds to the crisis in a sober and responsible way, and which provides appropriate defences for hospitals and health professionals working in difficult circumstances.

So how might the law respond to medical systems and health professionals under the stress and strain of one of the largest public health challenges in our history?

Let’s take a look at existing legal principles, and how they might apply in the new paradigm created by the coronavirus. Courts are already being asked to examine two old questions reenergised by the COVID pandemic:

  1. Can a hospital be sued if it doesn’t have the capacity to treat someone?
  2. Can a hospital be forced to treat a patient despite the absence of clinical need?

A recent court decision in the UK reiterates a hospital’s right to refuse further treatment, or to discharge a patient based on scarcity of resources in the wake of the COVID pandemic.

In that case, a patient refused to leave her hospital bed until certain treatment and transfer concerns were met. The NHS applied to Court for possession of the bed on the basis that the bed was urgently needed for other patients being treated for COVID-19.

The Court noted that in theory a patient might challenge a hospital’s decision to refuse treatment where that decision was made contrary to law or was made as a result of some improper purpose. But where the decision was made based on the clinical needs of the patient, even if other clinicians disagreed with that decision, healthcare professionals could not be forced to provide care or treatment against their own clinical judgement.

The court stated:

“Patients have no right to occupy beds or rooms in hospitals except with the hospital’s permission. A hospital is entitled as a matter of private law to withdraw that permission. In deciding whether to withdraw permission, the hospital is entitled and indeed obliged to balance the needs of the patient currently in occupation against the needs of others who it anticipates may require the bed or room in question. Unless its decision can be stigmatised as unlawful as a matter of public law, there is no basis for the court to deny the hospital’s proprietary claim to restrain the patient from trespassing on its property.”

Finally, the Court noted that the decision by the hospital in this case involved the allocation of scarce public resources, which are routinely made by hospitals and governmental agencies (in or outside the COVID context).

Could someone sue for contracting COVID in hospital?

Let’s put aside for a moment that projections appear to demonstrate that over the course of time, huge swathes of the Australian population are likely to contract COVID-19 (with or without spread in hospitals).

It’s an unfortunate fact of life that some patients will contract viruses or infections as a result of a hospital admission, some of which cause lasting damage and death.

There is an important legal distinction though between contracting an infection or virus as an inpatient as a result of misfortune, compared with as against the same condition being contracted as a result of improper hygiene or improper adherence to procedures by the hospital or its staff (as recently alleged in relation to the conduct of a group of hospital staff in Tasmania).

Further, in Victoria and a number of other states and territories, compensation for pain and suffering is only available where a person can prove that they have suffered permanent injuries. In Victoria, the test is “significant injury” under s28 of the Wrongs Act.

In essence, unless a patient could show that they contracted COVID-19 as a result of negligence by a hospital or healthcare provider, and that they suffered significant and permanent loss, injury or death, a claim for compensation against a health care provider would be fruitless.

“Quack science” and legal liability

Anyone touting untested or unfounded remedies for COVID-19 has (and should have) significant legal exposure in the case of anyone who suffers injury as a result of treatment or advice provided.

I am reminded of a case I was involved in several years ago in which a naturopath repeatedly prescribed an anti-malarial drug to treat cancer. The patient was required to self-administer the drug intravenously. As a result, the patient suffered a major brain injury akin to a stroke. A claim for compensation followed.

In order to bring a claim against someone shopping snake oil as a medical treatment, it would be necessary to prove that the treatment or advice has caused substantial loss or injury (which might occur either directly by way of the treatment, or indirectly because the condition was worsened by a reliance on the treatment or advice over recognised mainstream treatment).

Celebrity chef, Pete Evans’ machine promoted as a treatment for coronavirus

The $15,000 machine touted by chef Pete Evans to be a treatment for coronavirus potentially creates a number of legal liabilities (including the potential for action under the Australian Consumer Law relating to the promises made regarding the device), however as this falls outside the context of medical treatment and advice, I’ll deal with that in a separate blog.

A note about protections for infected healthcare workers

This article has focussed on liability and defences relating to infected patients.

Healthcare workers infected in the course of their employment are protected by legal rights and entitlements and should be encouraged to access a range of benefits through their workers’ compensation insurance which allows benefits irrespective of fault on the part of any person.

Will any COVID infection sources be tested in the courts?

The blame game surrounding Australia’s response to COVID-19 will likely be tested in courts.

Those responsible for allowing infected cruise ship passengers into the community, those pushing fake remedies, and individuals infecting local residents by flouting quarantine can and should be legally liable for any injury and death negligently inflicted.

As I said at the beginning of this article, the public and health professionals can rest assured that the COVID-19 pandemic is no picnic for medical negligence lawyers. Existing legal defences will find new application in defence of any unmeritorious claims made against hospitals and health workers as they do the important work of protecting the community from the ravages of the global health crisis.


1300 383 825 or email [email protected]

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