By John Tingle
Health care law is evolving particularly rapidly during the COVID-19 pandemic.
For example, as the COVID-19 pandemic continues, families in England who have lost loved ones to the virus are considering filing clinical negligence claims. And there have even been calls in some quarters to bring global lawsuits against China for breaches of international health regulations over its handling of COVID 19.
COVID-19: Legal Action
Perhaps in part due to the general, heightened public awareness of rights to sue for clinical negligence, people in the U.K. are now considering taking legal action against the National Health Service (NHS) for improper, negligent COVID-19 treatment.
James Robinson, writing in the MAILONLINE, notes the trend: “Grieving families of patients who have died after contracting coronavirus are exploring the possibility of taking the NHS to court, as unions warn litigation threats are piling added pressure on already stressed medics,” he writes. “At least 17 families whose loved ones have died during the COVID-19 pandemic are considering legal action against the NHS, according to support charity Action Against Medical Accidents (AvMA).”
In cases of clinical negligence during COVID-19, a key issue centers around whether medical practitioners followed relevant clinical guidelines.
Clinical Guidelines and the Law
Earlier in the year, a case was decided which might set an important precedent for upcoming COVID-19 cases. The case, Sanderson v Guy’s and St Thomas’ NHS Foundation Trust  EWHC 20 (QB), concerned electronic fetal monitoring, delays and birth injury. The case dealt with the issue of National Institute for Health and Care Excellence (NICE) clinical guidelines and professional judgement. It also stakes a claim on the issue of the courts considering the environmental context of clinical care when setting the standard of care to be adopted.
In her ruling, Mrs Justice Lambert found no negligence. She stated that the Guidelines at issue in the case appeared to advocate two contradictory management options: “On the critical question for my determination, the Guidelines point in two, entirely different, management directions.”
She further stated: “The Guidelines are useful so far as they go, but they are limited. The Guidelines do not provide a substitute for clinical judgement but must be interpreted by the clinician and then applied in the light of that judgement.”
Sanderson v Guy’s and St Thomas’ NHS Foundation Trust refreshes and puts a contemporary gloss on the issue of the legal aspects of clinical guidelines. It is well-established law going back many years that clinical guidelines do not suspend clinical judgement. They are guidelines and not “tramlines.” If a patient’s condition contraindicates the application of clinical guidelines, then they should not be applied.
I have spent many years considering the legal aspects of clinical guidelines. In 2002, my article titled “Do guidelines have legal implications?” offered a perspective on the potential legal ramifications of the increased use of guidelines at that time.
The Bolam Test
There are many legal issues associated with clinical guidelines. Some guidelines do conflict and contradict each other. The fundamental point to remember is the Bolam test, which stems from Mr Justice McNair’s jury direction in Bolam v Friern Hospital Management Committee  1 WLR 583 at 587.
According to this test, a nurse or doctor is not negligent if they act in accordance with a practice accepted as proper by a responsible body of nursing or medical opinion.
Stephen Maratos and Jennifer Hovington summarize the position: “The treatment will not be negligent if supported by a reasonable body of practitioners, even if there is a body of opinion and as in this case, conflicting NICE Guidelines, offering a contrary view.”
Likewise, we can expect COVID-19 clinical negligence cases to make use of this test. Justices will be left to decide whether medical professionals’ actions during the pandemic follow proper practices as judged by responsible practitioners.