Does the current health crisis provide a defence against medical negligence claims?

Recent reports of patients waiting hours in hospital corridors or being queued in tents outside for hours again emphasised the strain on the public hospital system in Victoria. These stresses on the health system have led to difficult questions for courts and lawyers. How should the law respond or interpret constraints on the health system when making a decision about whether a hospital or health practitioner has been negligent?

Last month, as my partner entered the Emergency Department of one of Melbourne’s major hospitals, she walked past a nurse who looked like she had witnessed just about everything that could occur in a hospital emergency department. So, what this nurse muttered under her breath came as a surprise…. “I’ve never seen anything like this”.

On walking inside, it became obvious what she meant. The waiting area was overflowing with people with bugs and illnesses brought on by the end of COVID isolations, as well as the usual gamut of breaks, knocks and ailments.

As our health system stretches to near breaking point, there have been a lot of discussions about the impacts on health workers and on the effect of delays in treatment for their patients.

Extended delays in ambulance attendances, full to bursting emergency waiting rooms and overworked staff have led people to wonder what they should reasonably expect in terms of the timing and quality of the healthcare provided to them.

Healthcare “rationing” – where a patient goes without necessary or beneficial health treatment – have become part of the discussion among policy makers and health providers faced with difficult ethical and medical choices.

Despite the considerable pressures on the health system brought by COVID, issues with rationing, delays in hospital triage and delay in provision of ambulance services are not new. Because funding is not limitless, doctors are frequently asked to make difficult decisions about discharging a patient, the priority for surgery, or stopping treatment altogether.

In assessing whether a patient has received negligent medical treatment, Courts considering medical negligence claims look to what it is “reasonable” to expect of an ordinary skilled person exercising and professing to have that specialised skill.

This extends to advice to patients as well as treatment, examination and diagnosis.

But what is “reasonable” medical treatment in extraordinary times?

Should the law of negligence do more to protect stretched hospitals at the expense of the rights of the patient?

In the United Kingdom laws have been introduced to protect doctors and hospitals from claims made against them where their capacity to provide emergency care has been affected by COVID-19.

While these issues are yet to be tested by Australian Courts in light of COVID, we can look at existing legislation, court decisions and policies to make predictions about how the law would respond to the current demands on the healthcare system and the rights of patients.

What we see is that there are already sufficient legal protections in place to ensure that in any potential medical negligence claim, doctors and public hospitals are able to point to extraordinary circumstances or limited resources in defence of their advice or treatment.

In Victoria, the Wrongs Act protects public authorities such as public hospitals in relation to decisions made to allocate its scarce resources.

Critically, these protections are not available to individual health professionals (for example, your GP) or private hospitals.

The effect of these protections is that decisions made by public hospitals about how they allocate their resources (for example, a decision about whether to buy a new CT machine or a new MRI machine), are not open to legal criticism or challenge in a claim for compensation.

So, the decision by a hospital not to allocate more funding for ICU beds could not be said to be negligent, unless the decision was so unreasonable that no other hospital in that situation would have made it. This is often referred to as “Wednesbury Unreasonableness”).

So, does this mean that hospitals can always use this defence in relation to scarcity of resources?

Not quite.

While the Wrongs Act will usually prevent the hospital’s policy or funding decision from being the subject of a negligence claim, the resultant decisions and impacts of that policy on the ground, could still be the subject of a claim.

Consider this scenario

• • Bert was left waiting 90 minutes in an emergency department waiting room and suffered severe injuries as a result of the delay;
  • Bert could not sue the hospital for failing to allocate more triage nurses and doctors;
  • However, he may be able to pursue a medical negligence claim on the basis that the hospital and its staff were negligent in failing to triage and admit him ahead of other patients.

While this might sound like it would create open slather for claims against stressed hospital emergency departments, in fact there is still a lot which stands in between a person injured during medical care and a finding that their health practitioner was negligent.

In particular:

1. Courts have shown a lot of interest in taking into account the particular circumstances in which the medical treatment was provided;
2. A compensation claim for medical negligence requires more than proving negligence. It is also necessary to establish that the negligence has caused loss or injury that would otherwise have been awarded, and to obtain compensation for pain and suffering, it is also necessary to prove that the patient has suffered a permanent significant injury.
3. Hospitals and the State Government have created specific policies for triage during the COVID pandemic. These policies can have a bearing on the standard of care which a patient is legally entitled to expect.
4. The Wrongs Act provides a defence for health professionals who can establish that the treatment they provided was widely accepted practice according to their peers.

Courts in Australia have been asked to look at the particular circumstances or the environment in which medical treatment is provided when determining what is “reasonable” and what is “negligent”.

Courts have long acknowledged that what constitutes reasonable treatment depends heavily on the circumstances and facts of the particular case.

In the UK case of Mulholland, the Court found that when determining whether a triage nurse in a busy emergency department had been negligent, it was necessary to look to the context in which the decision was made. The Court needed to consider the nurse’s need to make ‘a quick judgment call as to where next to send the patient’.

In the Australian case of Richards v Rahilly, the Court found that the duty of care owed to a patient in a regional centre may be different depending on the equipment available at the health centre.

By contrast, in the case of Sherry, it was found that a private hospital had a duty when providing hospital and medical care, to staff the ICU at appropriate levels. The key here is that a private hospital does not have the kind of protections available to public hospitals under the Wrongs Act, regarding limited resources.

Legislation already provides protection to under-resourced public hospitals facing the current stresses and challenges seen in Victoria.

This protection is supplemented by a number of Court decisions which emphasise that a decision about whether medical treatment is “negligent” cannot be made in a vacuum. It needs to take into account the context in which the advice or treatment is provided.

In allowing for this context, Australian Courts strike a balance between recognition of challenges to health systems beyond their control, with the rights and entitlements of patients to receive reasonable medical advice and treatment.

This tension is best summarised in the UK decision of Morrison v Liverpool Women’s NHS Foundation Trust, where Justice Turner stated:

[I]n the clinical context a balance has to be struck between the needs of any given patient and any other competing professional demands placed upon the clinicians involved. Sometimes, the seriousness and urgency of a patient’s presentation and the absence of any conflicting factors will mandate a swift and decisive response. On other occasions, it is equally obvious that the needs of the patient must be deprioritised to allow the clinicians to attend other demands on their time as a matter of priority.^[106]

In a complete ICU overwhelm, as an unprecedented, extreme event, a court is more likely to find that the relevant duty of care has not been breached on the basis that reasonable care has been taken in the circumstances. But this does not mean there is no risk of liability for the intensivist or the hospital. A severe bed shortage may be insurmountable, but a doctor must still take reasonable steps to provide life-sustaining treatment, or risk civil liability in negligence.

Critically, there is room for both protection of strained hospital systems and staff, and the patients that they seek to treat.

The strain on health systems brought about by COVID-19 will not produce an influx of litigation or a sudden stop to claims by patients treated poorly. The system is adequately fitted with the tools it needs to ensure balance between competing rights and demands of patients and health providers.

Navigating the course of a medical negligence claim is rarely straightforward and claims are often complex. That said, the challenges brought on by COVID create legal challenges that Courts and medical negligence lawyers are well-equipped to deal with.

You may also like to read:

• How do I prove medical negligence?
• Diagnostic Errors and Medical Negligence
• Informed Consent in Medical Treatment