Daniel Sokol: Can non-specialty doctors on covid wards still be sued?

Doctors should be aware of the boundaries of their competence and not feel pressured to cross them, says Daniel Sokol

As doctors from different specialties are shuffled around and plucked from retirement to help with the covid-19 efforts, questions arise as to whether these doctors will be more vulnerable to being sued if patients come to harm. Would an orthopaedic or ophthalmic surgeon on the medical ward, fulfilling the role of a medical registrar, be given some slack by the courts? In other words, is the standard of care expected of these doctors lower than it would otherwise be?

The short answer is no. The expected standard of care and skill will be based on the post that the doctor is fulfilling at the time of the alleged breach. The orthopaedic surgeon, snatched from the comfort of his operating theatre, will be judged in accordance with the standard expected of a reasonably competent medical registrar. This will be the case even if he or she has not worked on a medical ward for years.  

In times past, courts did take into account the experience of the clinician in determining the standard of care. In Junior v McNicol [1] the fact that the house surgeon was “a comparative beginner” was deemed a relevant factor by the court. No longer.  

In FB v Princess Alexandra Hospital NHS Trust, [2] a “relatively inexperienced” senior house officer took a flawed medical history which resulted in a young girl suffering devastating injuries. The Court of Appeal stressed that inexperience or newness in the role did not reduce the required standard of skill and care. So, whatever post doctors are asked to fulfil, the standard is that of a “reasonably competent doctor in that post.”  

In determining what such a doctor would have done, the court is likely to take into account the reality of the situation, such as the stressful environment, the need for a swift decision, and scarcity of resources. In Mulholland v Medway NHS Foundation Trust, [3] the High Court considered a case in which the diagnosis and treatment of a patient’s brain tumour had been delayed by three months.  In cross-examination, the accident and emergency doctor was criticised for failing to consider the possibility of a Jacksonian seizure. The court dismissed the criticism and stated:

doctors in A&E do not have the luxury of long and mature consideration. They take decisions at short notice in a pressurised environment. […] in my judgment the standard of care owed by an A&E doctor must be calibrated in a manner reflecting reality.

However, it would be a mistake for doctors to think that working in a stressful covid ward in and of itself provides immunity against negligence claims. Even in challenging circumstances, there are mistakes that no reasonably competent doctor would make.  

In a video message to doctors, Dame Clare Marx, chair of the General Medical Council, acknowledged that doctors working in unfamiliar roles “may be fearful about the implications of working in this way.” Her answer: “For doctors, we will need to stick to the basic principles of being a good doctor as set out in our guidance.” Dame Marx then affirms that “the challenges of the circumstances” will be taken into account when the GMC investigates concerns.

In answer to the question “Working outside my specialty during a pandemic—can I do this?”, the British Medical Association stated “Yes—it is reasonable for you to be asked to work outside your specialty. However, you should work within your competence.” The only exception is in an emergency with no realistic alternatives. If that happens, doctors should keep a record of what was done and why they were involved.

In court, saying “I had been retired for two years” or “I am a surgeon, not a medic” will provide no defence to a claim of negligence. Even more than usual, doctors should be aware of the boundaries of their knowledge and competence and seek help if asked to venture perilously close to those boundaries. They should not feel pressured, by their employers, their conscience, or anyone else, to cross them.

[1] Junior v McNicol (Times Law Reports, March 26, 1959)
[2]  FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334
[3]  Mulholland v Medway NHS Foundation Trust [2015] EWHC 268 (QB)

Daniel Sokol is a medical ethicist and barrister specialising in clinical negligence. He is the author of Tough Choices: Stories from the Front Line of Medical Ethics (Book Guild, 2018). Twitter @danielsokol9

Competing interests: None declared.