As a legal practitioner with a special interest in medical negligence claims, I anticipate many calls later this year from the relatives of elderly family members who have passed away as a result of contracting the COVID-19 virus, particularly if our health systems become overwhelmed.
There will be calls from people whose 75-year-old or 85-year old mother, father or spouse has passed away after contracting the virus and they believe that their parent was not provided with the best medical care available. They will not only be saddened by their loss but they will be angry that their beloved parent or spouse did not receive the treatment they believe they were entitled to.
In almost all cases, my legal advice to them will not be what they want to hear.
Putting liability aside for the moment, the first difficulty is going to be that their elderly parent or spouse was not likely to have been an income earner and it is unlikely that the caller was financially dependent upon the income of the deceased or dependent on their care. As might be imagined, such situations are exceedingly rare.
The sad truth is that Queensland legislation actively discriminates against elderly people with medical negligence claims. It does so by precluding claimants from recovering their standard legal costs from the defendant unless their damages claim exceeds about $78,040. Without a claim for economic loss, virtually all claims involving negligent treatment of an elderly person do not reach that level of monetary damages in order to make the claim economically viable. Much the same applies when negligent treatment of a child causes their death.
Unless there is a dependency claim the only other claim available to those who have lost an elderly loved one is a claim for a psychiatric injury caused to the survivor by the circumstances surrounding the death of their loved one. Such claims do arise but sometimes what the claimant is suffering from is prolonged grief, not a diagnosable psychiatric injury as such.
Returning to the threshold question of “liability”, this is likely to be a difficult hurdle for potential claimants in the COVID 19 scenario.
The standard expected of medical practitioners and medical health workers is not one of “perfection”.
The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have a special skill. So, in a medical context, it is whether the doctor, nurse or hospital at large met the standard of an ordinary skilled doctor, nurse or hospital.
If things go very badly for our health system and it is overwhelmed by patients suffering from COVID 19, it simply may not be possible to provide the care the medical practitioners would like to or ordinarily be able to provide. In that situation, I expect that courts are going to have some sympathy for those medical practitioners working under very difficult circumstances with limited resources, particularly if those resources are limited by factors beyond the practitioners’ or the hospitals’ control.
Let us hope that the “flattening of the curve” of new COVID-19 patients is successful and our health system does not become overwhelmed.
As always though, if you think you may have a medical negligence claim, you should seek advice from a lawyer with particular expertise in this area. Strict time limits apply to medical negligence claims so it is better to receive expert advice sooner than later.
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).