Medical Malpractice

COVID-19 significantly reduced the frequency of face-to-face consultations and caused a seismic shift to telemedicine, particularly the use of video consultations, which is here to stay. Telemedicine technology reduces the spread of infectious diseases in clinics and enables swift access to healthcare at a distance with associated cost and time-saving efficiencies. However, the virtual doctor-patient relationship poses risks. Doctors will need to exercise caution to avoid misdiagnosis and to ensure that older or less tech-savvy patients remain able to access medical services. Doctors should have a low threshold for calling their patients in for face-to-face consultations, physical examination and assessment. If not, it is inevitable that serious conditions will go undiagnosed, increasing claims brought by patients.

Mounting pressure on NHS employees, exacerbated by the COVID 19 pandemic, has increased the role of triage in healthcare services. Triage helps identify and prioritise the sickest patients, and filters non-urgent cases away from emergency services to more appropriate health services, with the aim of reducing waiting times and using NHS resources efficiently. Patients are more frequently seen by nurses than senior clinicians who assess whether upward referral is required. But triage comes with risks: the healthcare worker undertaking the triage assessment needs to realise when the patient’s condition lies outside their expertise and when more specialist input is required. If they fail to refer, serious conditions will be missed, increasing the number of medical malpractice claims.

The benefits of healthcare artificial intelligence (AI) are already being seen in radiological analysis. However, as more AI devices come to market, there will also be increased risks. For example, as the devices self-learn, the thought processes by which they make decisions may not be transparent (known as the ‘black box problem’). The present law of medical negligence is ill-equipped to deal with AI, causing uncertainty over how claimants will litigate AI claims. Will they pursue AI claims through Bolam negligence, on the basis that the AI product should be judged according to the same principles as a human clinician? Will they pursue these claims as product liability claims? Or even a mixture of both? In addition, there will be the question of how blame should be apportioned between clinicians and AI producers. These factors will increase litigation complexity and costs.

The UK is at the forefront of the use of genomics (the body’s genes) in healthcare. This allows a more targeted, effective and tailor-made approach to patient care based on an individual’s needs. It can lead to early diagnosis or even the prevention of medical conditions. But genomics may raise patient expectations and when expectations are not met, litigation often ensues. As genomics play a larger role in healthcare, questions relevant to medical negligence liability will start to shift from “why didn’t you diagnose my condition?” to “why didn’t you prevent my condition from developing in the first place?” Genomics, like AI, is a new frontier which introduces new legal issues. Not only will there be different questions asked around liability, but they will be asked of different people. Genomics will see a new hybrid professional, the bioinformatician, whose role will straddle medicine and large data and who will sit at the heart of the provision of genomic-based healthcare. What’s more, questions will be asked by different people: not only will injured parties bring claims but we can expect to see representative actions pursued by sectors of the population who perceive unfair discrimination in the creation and availability of such personalised healthcare.

The healthcare industry is rapidly onboarding technologies to improve operational efficiencies and deliver better patient-centric care. Both artificial intelligence (AI) and genomics rely on the generation of big data for algorithms and prediction models, but this comes with data integrity risks. Cyber security, data misuse (such as discrimination between population subsets) and data privacy claims are on the rise and remain a challenge for the industry. The availability of clinician performance data, while promoting transparency and the evaluation of healthcare quality, also creates litigation risk and the need for bespoke insurance covers supported by individualised ratings.

We are seeing a marked increase in cross border disputes, not only from UK patients receiving treatment in Europe or in Turkey, but also from international telemedicine, where doctors are increasingly outsourcing treatment virtually to third party providers overseas. It is vital that providers and their insurers consider the regulatory and licensing issues surrounding international healthcare. Working closely with our German Legalign partner firm, Bach Langheid Dallmayr, we acted for Viersen, a German hospital, in the recent landmark Supreme Court medical malpractice claim of SSAFA v Viersen. The case has clarified that contribution claims will be dealt with under the usual rules of private international law, so that if those rules cause German law to apply then the contribution claim will be dealt with under German law as well. Viersen faced a multi-million pound liability arising from obstetric brain injury. The application of German law allowed us to successfully defend the claim on grounds of limitation, a defence that would not have been available if English law applied.