WITH Ireland now almost a year into the Covid-19 pandemic, minds are turning to how litigation can be pursued because of the effects of the virus on the lives of many.
In particular, the health sector is an area where the spotlight of litigation is already beginning to shine.
Cork barrister Doireann O’Mahony regularly deals with medical negligence cases.
“We as lawyers are already hearing complaints from patients who have been denied treatment due to the pandemic, and some whose family members have tragically died,” she says.
“A lot of acute medicine is not getting the urgent attention it needs because of the pressure on intensive care and beds in wards, and this is having a knock-on effect on other emergency situations.”
She says the opportunity to intervene in cancer cases is being lost if appointments are being cancelled, leaving patients unseen.
“The result of that is an increase in the number of people whose cancers spread and sadly, the number of deaths,” she says.
“The pandemic is causing delays in screening as well as in treatments like chemotherapy and radiotherapy. The lack of intervention is what kills people.”
She says it is not just cancer which is being left untreated or undiagnosed, citing heart and lung issues as being some of the conditions which could worsen if not dealt with “in a timely manner”.
She says however that bringing a case against the Health Service Executive will not always be straightforward or easy.
“If the extent of the negligent impact on an individual is severe, it is likely that a claim will be mounted,” she says.
“If the HSE had capacity but didn’t use it, then a patient will certainly have a stateable case in medical negligence, but not, I would think, a bulletproof case.
“It will be alleged on behalf of the HSE that their resources are finite and that they cannot deal with an unlimited number of medical and surgical presentations. On the standard of care, the HSE might say that it was reasonable, for example, to pull people off cancer wards, in order to cope with the pandemic.”
She points out: “At the end of the day the system can only do what it is resourced to do.
"There are only so many people qualified to do the job, and so many hours in the day. If the system is stretched, those working within it can’t do any more than their capacity. No organisation can perform beyond its limit and something’s got to give.”
John Ringrose, who is based in the Cork office of HOMS Assist, points to the US as being ahead of Ireland at present in terms of litigation arising out of the pandemic.
For example, last autumn, some cases were set in motion by passengers of cruise ships who got Covid-19.
According to the Health Protection Surveillance Centre, the definition of hospital- acquired Covid-19 infection is dependent on the following:
Onset of clinical features of Covid-19: Seven days or more after admission should be regarded as hospital-acquired Covid-19.
Onset of clinical features of Covid-19 between days three and six after admission are considered hospital-acquired cases of Covid-19 if epidemiologically linked to hospital exposure.
Onset of clinical features of Covid-19 on day one or two after admission are considered community-acquired unless epidemiologically linked to hospital exposure during a recent hospital admission. If onset of clinical features cannot be defined, a case-by-case assessment is required taking account of the date of sampling relative to the date of admission, the cycle threshold value of the test result and epidemiological evidence of a link to hospital exposure.
Mr Ringrose said: “The difficulties [in cases claiming hospital-acquired Covid infection] will be in proving the link and causation.”
Marion Fogarty of Cantillon Solicitors says the company is seeing some queries coming in from people about the issue of hospital- acquired Covid-19 infection.
She says that there is a two-year time limit for bringing cases alleging medical negligence, and she believes the full legal ramifications relating to hospital-acquired Covid infection “will not be felt before the end of the year”.
She echoes her legal colleagues’s views that such cases will be hard to prove.
She says: “Every case is fact-specific.”
She says that the courts will be likely to take into account the context of the Covid-19 pandemic and the strain on resources and personnel as a result.
She adds: “The context is important.”
And she says that the timing of infection or delayed diagnoses, will also be vital in such cases, as courts will have to consider whether a hospital was in a very busy period of the pandemic at the time.
In recent years, cases taken in relation to hospital-acquired infections such as MRSA were difficult to win.
Mr Ringrose said of those cases: “Showing the cause and the link was a challenge for claimants.”
Ms O’Mahony says that the same is likely to be true in cases taken regarding hospital- acquired Covid-19: “Just because a person contracts an infection in hospital, it does not mean that there was negligence.
“Medical expert reporting from a virologist or consultant in infectious diseases could help in the investigation of a claim, but it would have to be shown that the protocols and procedures in place were substandard and that this directly resulted in injury or death. Also, of course, when community transmission rates are at the high level they are, it could be said that it is inevitable and unavoidable that there will be outbreaks in hospitals.”
She Said: “I think realistically some of these claims could be very difficult to bring home. To succeed in any medical negligence claim a person has to prove that the doctors involved in their care deviated from ‘general and approved practice’. That is already a high burden of proof, but having to prove a departure from general and approved practice during a global pandemic when hospitals are completely overwhelmed would perhaps be an insurmountable challenge.
“The courts might also be disinclined to open the floodgates, on public policy grounds.”
She says there will be times where tough choices have to be made by hospital staff.
She outlines: “There will be patients whose treatment is urgently required and whose urgency is greater than that of a patient with Covid19, but for the most part, those with the virus are most likely to die. It is enormously difficult, but it is a question of the imminence of death. Any system of care can only do what is possible.”
And she concludes: “I have great respect and admiration for our frontline workers, who have done so much for so many for so long now ... almost 11 months.
“Covid-19 has done enough damage. The last thing these people need now is the threat of litigation against them arising from the virus.”
In a statement, the Health Service Executive said: “As part of acute hospitals’ response to Covid to maintain patient access to services there has been a significant mobilisation of virtual patient engagements. Preliminary data indicates that a total of 657,415 virtual outpatient consultations have been reported since March 2020 [when the reporting process commenced] up until the end of December.”
It said: “In 2021, care delivery has again been impacted due to the current surge of Covid 19 which has seen public hospital services restricted for urgent or time critical patients only at this time.
“This is to reduce the transmission of Covid-19 and to ensure that hospitals can respond to critical patient needs. Significant funding has been identified through the 2021 estimates process to support access to care.”