There is little doubt that the Covid-19 pandemic has, either directly or indirectly, affected the vast majority of the world’s population. The extent to which it has is, of course, dependent upon where a person lives; their work and home environments; age; ethnicity; current health etc.
The effect on employers and businesses
For employers, the world is a very different place than it was 12 months ago. As successive governments round the world have enforced a stay at home policy for all but essential workers, all owners of businesses and HR professionals have been forced to consider how to maintain its workforce to ensure that they are working safely whilst, at the same time, balancing the needs of the business against that of the employees.
Inevitably, such hastily made arrangements in this new world will result in many and varied claims by employees. Such claims relating to a person’s employment will include breach of contract claims; unfair dismissal claims; and wage and hour related claims.
Further, the losses sustained by businesses raise the spectre of a huge number of Business Interruption Claims being made against insurers whereby the businesses seek to recoup their loss of revenue/profit under the terms of their existing Business Interruption Policies. Up until now, the insurers have resisted such claims on the basis that the losses have been sustained as a result of the pandemic which the insurers have argued are losses not covered under the policy.
Subsequent to an Appeal Hearing before The UK Supreme Court concerning the UK’s Financial Conduct Authority’s (the “FCA”) business interruption insurance test case on 19 November 2020, the Court in its judgement substantially allowed the FCA’s appeal on behalf of many and varied policyholders. This judgement will mean that many thousands of policyholders will now have their claims for coronavirus-related business interruption losses paid.
There is little doubt this outcome will have significant and very wide-reaching implications for both for the insurance industry as well as, of course, those businesses seeking to be indemnified for all of their losses.
Rise in personal injury claims due to delayed treatment, handling of care homes and treatment of Covid patients
We are also likely to see a significant rise in personal injury claims arising out of the pandemic. Whilst it has been widely recognised that the NHS staff have performed heroically in treating many Covid patients, there will inevitably be focus on certain aspects of the care provided particularly near the start of the pandemic in early spring 2020 as well as the decisions taken by the NHS and/or the Scottish Government with regard to decisions concerning the prioritisation of treatment and screening of patients.
Concerns surrounding Care Homes
One such decision which will likely be subject to further scrutiny is the decision to move elderly hospital patients out of the hospital system and into nursing and care homes. It has been widely reported that this decision was taken to clear space for the anticipated significant increase of Covid patients. For whatever reason, it was agreed that many of these elderly patients being transferred were not to be tested for Covid-19 prior to their transfer.
It now appears to be accepted that a significant number of these patients had Covid-19. Due to the care and nursing home staff being unaware of the condition of those elderly patients sent to them, it seems very likely that many unwittingly passed the virus on to both staff and other residents which thereby lead to a spike of infections in the care homes. Given the age of many of the residents, the inevitable consequence was a significant increase in the number of deaths within the care homes which was vastly in excess of what one would expect at that time or indeed any time of year.
Such claims which may arise are ones likely to be taken by the family of the deceased Covid-19 victim. Any claim will require to focus on the initial decision taken by the referring hospital/doctor, i.e. who took it, when, relying on what information and what was communicated by the referring hospital/doctor to the home concerning the patient’s condition and the risk of them potentially having Covid-19?
Inevitably such considerations will focus on what the doctors knew or ought to have known about the medical condition of those patients and, in particular, were they likely to be in a category of patients who could have Covid-19. If the answer to any such questions is yes, then the courts may conclude there to have been a duty of care on the part of the referring doctor/hospital to either test the patient prior to discharge or, at the very least, inform the care home staff that the patient being transferred had not been tested and was in a category of all patients who may have Covid-19. Had they done so, it would presumably have allowed the nursing home staff to put in place suitable additional precautions to prevent the transmission of the virus to staff or residents.
On any rational analysis of the published figures, it does appear that this policy not to test prior to transfer has led to many more deaths in nursing homes and that such deaths might have been prevented if the decision had been taken by the hospitals to test all or many more patients. It is difficult for relatives to understand why the tests were not done at that time given that the patients were already in hospital and from a relatively early stage in the pandemic, the hospitals had the capability to undertake Covid tests.
Had the tests been done and a patient noted to be positive for Covid-19, it seems entirely possible that either the decision would have been taken by the doctor to keep the patient in hospital or, if to be transferred, ensure that the nursing home staff knew to isolate the patient, had the resources to provide all appropriate care and crucially ensure they were not in close contact with any other residents in the home thereby reducing the risk of transmission of the infection to other residents.
Against that background, any claim, whilst focussing on these aspects, has many hurdles to clear before it is successfully established. Whilst many claims may focus on proving that the number of deaths in a particular nursing home was significantly higher than one would have expected at that time of year and that patients were indeed transferred without any testing or information given to the care home about the patient, there is still the issue of establishing that the deceased relative would not, in fact, have contracted Covid-19 had it not been for the decision taken by the doctor/NHS to transfer the patients without testing. These are not easy issues to grapple with. It will not be until we see the first cases coming through the courts perhaps later this year that we will get an indication of how the courts are likely to approach such claims.
A further area where we may see litigation is claims arising out of the way in Covid-19 patients were treated in the hospitals particularly near the start of the pandemic. Whilst the benefit of hindsight is a wonderful thing, it does appear that there was a dramatic shift in the way Covid patients were treated in hospital. In September 2020, The Economist reported that:-
“In British intensive-care wards, 90% of patients were on ventilators at the start of the pandemic; in June just 30% were. Drugs, including dexamethasone, a cheap steroid, reduce deaths in seriously ill patients by 20-30%”.
During the first three months of the pandemic, it appears that doctors treating patients in ICU units throughout the UK elected to use ventilators as the treatment of choice only to move away from that after the first 3 months to rely far more on a combination of drugs and less invasive methods than the ventilator. This change alone appears to have improved survival rates for patients treated in ICU Units significantly.
Clearly, doctors can only act within the boundaries of the knowledge of their profession at the time. The perceived wisdom early on in the pandemic was that ventilators were the better way to go. However, as early as 8 April 2020, Sharon Begley reported.
“….some critical care physicians are questioning the widespread use of the breathing machines for Covid-19 patients, saying that large numbers of patients could instead be treated with less intensive respiratory support.”
Ms Begley highlighted concerns raised about the widespread use of ventilators
“In particular, more and more are concerned about the use of intubation and mechanical ventilators. They argue that more patients could receive simpler, non-invasive respiratory support, such as the breathing masks used in sleep apnoea, at least to start with and maybe for the duration of the illness.”
In her article she quoted Muriel Gillick a Geriatric and Palliative Care Physician of Harvard Medical as saying
“The first batch of evidence relates to how often the machines fail to help. Contrary to the impression that if extremely ill patients with Covid-19 are treated with ventilators they will live and if they are not, they will die, the reality is far different,”
“Researchers in Wuhan, for instance, reported that, of 37 critically ill Covid-19 patients who were put on mechanical ventilators, 30 died within a month. In a U.S. study of patients in Seattle, only one of the seven patients older than 70 who were put on a ventilator survived; just 36% of those younger than 70 did.”
This data appears to suggest that ICU physicians may have been moving patients on to mechanical ventilators too quickly. It would appear from the early data available that the fall in mortality rates amongst the elderly admitted to hospital is directly linked to a significant decrease in the use of ventilators.
In the context of any litigation, the question will be asked if the doctors/NHS had reacted quicker to the available data available as early as 8 April 2020 and had adjusted their treatment regime at that time, how many more patients could have been saved at that time.
Delayed treatments, screenings and potential negligence
The third area where we may see litigation is concerning the injury or loss of life caused as a result of the lack of treatment for non-related Covid conditions. There is no doubt that regular services such as cancer screening had been severely affected by the need to deal with the Covid crisis. However, those decisions to reduce the availability of cancer screening services is likely to have resulted in a significant rise in undetected cases and thereby one assumes a rise in the number of deaths going forward.
Whilst there may be good reason for the decisions to have been taken, particularly during the early stages of the pandemic, it does appear that such decisions were taken with little or no consultation with the treating doctors and appear also to have not been subject to regular review thereafter.
In August 2020, James Duncare and Emily Brent reported on this issue in their article How the Pandemic Has Changed Cancer Screening and Care | Time. They sought to establish the effect of the reduction of cancer screening in the Dana-Farber Cancer Institute in Massachusetts.
Ms Wagner, Associate Medical Director of Dana-Farber Cancer Institute said
“Five months in, with the procedures and equipment we have put in place to ensure the safety of our patients and our staff, the potential health impact from cancelling cancer screenings is a bigger concern than the pandemic,”
For cancer patients, the unintended consequences start with those who don’t even know they have the disease yet. Studies suggest the pandemic led to a roughly 80% drop in routine screening appointments that could catch new cancers in March and April 2020 Rates recovered somewhat in the late spring, but one paper still estimated approximately 60% fewer breast, colon and cervical cancer exams from mid-March to mid-June compared with years prior. That translates to hundreds of thousands of missed exams nationally—and, among those who do have undetected cancer or precursors to it, the loss of potential early diagnoses and interventions.
Clearly, the decision to cancel regular screening appointments, particularly during the early part of the pandemic, was one made with the best of intentions and were put in place to free up hospital resources to deal with the pandemic. However, the question is bound to be asked about whether these decisions could have been made differently or if the initial decisions could have been revisited sooner to ensure suitable arrangements were put in place to increase the number of screenings to minimise the already devastating impact upon so many cancer patients. We will never know how exactly many deaths could have been avoided had different decisions been taken both at the early stages and as the pandemic progressed.
In conclusion, there appear to be a number of areas where questions on these matters will be asked. Only time will tell what extent these questions will be addressed by the court and, of course, if they lead to successful outcomes for those posing them.