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Should doctors tackling covid-19 be immune from negligence liability claims?

BMJ 2020; 370 doi: https://doi.org/10.1136/bmj.m2487 (Published 01 July 2020) Cite this as: BMJ 2020;370:m2487

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  1. Christine Tomkins, chief executive1,
  2. Craig Purshouse, lecturer2,
  3. Rob Heywood, professor3,
  4. José Miola, professor4,
  5. Emma Cave, professor5,
  6. Sarah Devaney, senior lecturer6
  1. 1Medical Defence Union, London
  2. 2School of Law, University of Leeds
  3. 3UEA Law School, University of East Anglia
  4. 4School of Law, University of Leeds
  5. 5Durham Law School, University of Durham
  6. 6Department of Law, School of Social Sciences, University of Manchester
  1. Correspondence to: C Tomkins media{at}themdu.com, C Purshouse c.j.purshouse{at}leeds.ac.uk

Litigation related to exceptional circumstances would be a complicated drain on a workforce and system already on its knees after the pandemic, says Christine Tomkins. But Craig Purshouse, Rob Heywood, José Miola, Emma Cave, and Sarah Devaney argue that, despite extraordinary times, immunity from negligence is unnecessary and sends the wrong message about practice standards

Yes—Christine Tomkins

Every Thursday evening for the past few months, people throughout the UK have been “clapping for carers” to recognise the efforts of NHS staff and others. But when we emerge from the covid-19 pandemic, those practitioners—many working outside their usual specialty or experience level—face being held to standards that won’t reflect the current conditions, including any new or unfamiliar roles they have bravely taken on.

The NHS may face an avalanche of negligence claims. Members have already contacted the Medical Defence Union (MDU) for help with complaints related to covid-19 treatment or about its effect on provision or availability of other care and treatment—and claims may follow.

UK clinical negligence claims are usually made years after the incident occurred. Three to five years later is usual, but the time lag can sometimes be decades. Staff responding to covid-19 are likely to be judged long after the public memory has faded, by standards unreflective of current conditions. Anyone who says otherwise, perhaps to try to reassure doctors involved in dealing with the pandemic, hasn’t experienced the harsh reality of clinical negligence claims, which would still be inflicted on them even if they later proved defensible.

The Supreme Court1 confirmed in …

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