Medical Negligence – COVID-19
As of writing this article, South Africa has reached over 382 000 positive COVID-19 cases. Although coronaviruses are common, this particular strand has created a global frenzy as a result of its rapid infection rate and our lack of immunity. COVID-19 has undoubtedly taken center stage. New infections and the difficulties those on the frontline of this pandemic face appear as our daily breaking news. This all on the back of a struggling healthcare system in South Africa. With doctors being faced with difficult decisions in order to treat COVID-19 patients, there is still the possibility of medical negligence rearing its head. However, if there is a claim for negligence as a result of what a practitioner has done or failed to do during these unusual times, then what standard would we use to judge them against?
In the usual circumstance, in order to determine medical negligence, we use the test set out many years ago in the case of Mitchell v Dixon, which stated that “a medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of skill and care, he is bound to employ reasonable skill and care, and he is liable for the consequences if he does not”. The test is and remains that of the reasonable healthcare practitioner in the particular circumstances of the case. These principles have remained unchanged. Although gross negligence will never be excused, it has been suggested that the standards for reasonableness will change post-COVID-19. This is not to say that, as things stand, the standard is lower when treating a COVID-19 patient. With this being said, one needs to prove more than gross negligence in order to have a successful claim. One needs to prove legal harm in addition to gross negligence unless such negligence results in a recognised psychiatric illness.
When investigating a possible medical negligence claim for a patient that has died as a result of COVID-19, our legal system limits damages claimable from the death of a patient to loss of support, psychological shock, and the consequences. Loss of support requires the deceased having been the breadwinner and the person claiming this loss was legally reliant on the deceased for support. In respect of psychological shock, one is required to prove a recognised psychiatric illness.
Proving a successful medical negligence claim when someone has died as a result, particularly during a pandemic such as this one, goes above and beyond the test set out above. One needs to prove more than mere negligence. The dependents need to have suffered harm or damage.
COVID-19 has placed a major burden on our healthcare system. A pandemic does not exclude the possibility of negligence. Healthcare practitioners are still judged against the same medical negligence standard during a pandemic and in usual circumstances. Until such time that this standard changes for a patient who has battled with COVID-19 and died as a result, healthcare practitioners can and will still be held reliable for their actions or inaction which results in gross negligence.