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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We read with great interest the two different perspectives on the liability of healthcare workers facing COVID-19 pandemic (1).
In Italy, in 2017 legal principles regulating healthcare professionals liability were reformed, granting safe harbour protection from criminal liability to professionals who committed errors complying with national guidelines issued by scientific societies and "best practices" issued by scientific societies and validated by national scientific committee, such as NICE (2).
Subsequently, the Italian Supreme Court ruling stated that, in the absence of such guidelines, the physician is liable only for gross negligence.
If we consider that in April 2020 some authors stated that "except for supportive measures, infection with SARS-Cov-2 is essentially untreatable” (3), and even now effective treatments have not been consolidated, this protection could not be applied to COVID-19 cases. Therefore, any discussion around negligence seems meaningless.
For instance, more than half of the scientific literature published at the beginning of the crisis has been retracted or is now obsolete. How can we fail to remember the WHO’s indications on the use of tests (4) and masks (5)?
How can we claim liability for failure in early diagnosis if the diagnostic tools are burdened with low sensibility and sensitivity (6)?
Identifying the correct behavior for healthcare professionals will very likely be problematic (7,8).
There is no doubt that, in the absence of precautionary rules to be observed, there can be no breach of duty and therefore there can be no liability: “nullum crimen, sine culpa; nulla poena sine culpa”.
The application of this principle could satisfy the second victims of COVID-19 (9): the healthcare workers, who have already been facing the failures of their efforts. But who considers the first victims (patients and families)?
Our regulations - at any latitude - contain the solution: the "no-fault compensation system".
When in the 1990s in France and Italy there was an epidemic of hepatitis C and B secondary to blood transfusions, the Legislators of the two countries intervened with a specific law (8) to protect people who have contracted the infections as a form of social solidarity (please note that in Italy social solidarity is a Constitutional principle).
Could such a compensation to COVID-19 victims and their families allow to overcome the issue of immunity from negligence liability claims?
The answer is yes if the governments of the involved countries will apply the Beveridge’s lesson of the immediate post-war period (10): monetize the debt.
(1) Tomkins C, Purshouse C, Heywood R, Miola J, Cave E, Devaney S. Should doctors tackling covid-19 be immune from negligence liability claims? BMJ 2020; 370 :m2487. doi: https://doi.org/10.1136/bmj.m2487 (Published 01 July 2020);
(2) Vetrugno G, Foti F, Spagnolo A, De-Giorgio F. Reconciling patients’ need for compensation with doctors’ need for protection. BMJ. 2019;365:l1717. doi:10.1136/bmj.l1717. Published 2019 Apr 15;
(3) Ferner RE, Aronson JK. Chloroquine and hydroxychloroquine in covid-19. BMJ 2020; 369 :m1432. doi: https://doi.org/10.1136/bmj.m1432 (Published 08 April 2020);
(5) WHO team. Rational use of personal protective equipment for coronavirus disease (COVID-19) and considerations during severe shortages. WHO/2019-nCov/IPC_PPE_use/2020.3, April 6, 2020 (on line: https://www.who.int/publications/i/item/rational-use-of-personal-protect...(covid-19)-and-considerations-during-severe-shortages); WHO team. Advice on the use of masks in the context of COVID-19 - Interim guidance, June 5 2020, (on line: https://www.who.int/publications/i/item/advice-on-the-use-of-masks-in-th...(2019-ncov)-outbreak);
(6) Watson J, Whiting PF, Brush JE. Interpreting a covid-19 test result. BMJ 2020; 369:m1808 doi: https://doi.org/10.1136/bmj.m1808 (Published 12 May 2020);
(7) Aquila I, Sacco MA, Abenavoli L, Malara N, Arena V, Grassi S, Ausania F, Boccuto L, Ricci C, Gratteri S, Oliva A, Ricci P. SARS-CoV-2 Pandemic: Review of the Literature and Proposal for Safe Autopsy Practice. Arch Pathol Lab Med. 2020 May 8. doi: 10.5858/arpa.2020-0165-SA. Epub ahead of print. PMID: 32383963;
(8) Oliva A, Pascali VL, Grassi S, Marazza M, Vetrugno G, Ponzanelli G, Scambia G, Cauda R, Bellantone R, Caputo M. Covid-19 pandemic: a limit or a frontier for law 24/2017? Riv. It. Med. Leg. 2/2020;
(9) Vetrugno G, De-Giorgio F, Foti F. Everyone is affected, everyone a victim BMJ 2019; 365 :l2160. doi: https://doi.org/10.1136/bmj.l2160 (Published 17 May 2019);
(10) Beveridge W. Social insurance and allied services. 1942. Bull World Health Organ. 2000;78(6):847-55. PMID: 10916922; PMCID: PMC2560775.
Competing interests: No competing interests