A panel of our global healthcare lawyers in Australia, Canada, England, France, Hong Kong, Ireland, Israel, Latin America (LatAm), and Spain recently explored the extent to which these jurisdictions are experiencing COVID-19 related healthcare/medical malpractice claims. A recording of which can be found here.
Here we highlight several key areas of discussion.
Australia
Aged care
Aged care has been the epicentre of the pandemic in Australia, and particularly in Victoria.
A class action (Fotiadis v St Basil's Home for the Aged in Victoria [2020]) has been commenced for nervous shock in connection with the acts or omissions of St Basil's Aged Care Home, which includes residents, the estates of residents or those in a proximate relationship with residents.
Vaccinations
Instead of a no-fault compensation scheme for vaccine side effects, the Australian Government has indemnity agreements with vaccine producers. A class action is being brought against the Australian Government for advancing the acceptance of vaccines which it is claimed has resulted in loss or damage (Anthony Leith Rose & Ors v The Secretary of the Department of Health Aged Care, Brendan Murphy & Ors [2023]).
Treatment claims
Redistribution of healthcare resources away from outpatient departments and other non-acute care areas and the backlog in treatment that this caused, has resulted in a significant spike in claims for missed or delayed diagnosis of cancer or other illnesses or delayed treatment cases.
The claims spike is being felt by the public hospital insurer and private insurers/medical defence organisations who provide insurance for general practitioners, radiologists and specialists. The standard of care applied must take into consideration the impact of COVID-19 on the delivery of care.
Contact: Cindy Tucker
Canada
There are currently no reported decisions of COVID-19 claims specifically relating to healthcare (i.e. malpractice or delayed diagnosis). However, the consensus is that these types of claims are still anticipated.
There are a number of class actions being brought against long-term care facilities. These are primarily being brought on the basis that the facilities concerned failed to take appropriate health and safety measures to protect their residents from infection.
Various Provinces have enacted legislation which provides COVID-19 liability protection. There will be no cause of action related to being exposed to or infected with COVID-19 if the individual or entity acted in good faith to follow public health measures or laws relating to the virus.
There are, however, exceptions to the liability protection, the most common being any act or omission which constitutes "gross negligence".
The Vaccine Injury Support Program (VISP) operates on a "no-fault" basis, providing access to financial support to individuals who have experienced a serious and permanent injury as a result of receiving a vaccine authorised by Health Canada and administered in Canada. An individual who submits a claim does not waive their right to litigate. If a legal action is commenced and settlement is reached or an award is made, the claimant is required to re-pay any funds received through the program.
Contact: Jason Arcuri
England
Redesigning NHS services to release capacity to treat COVID-19 patients, included setting up temporary hospitals, discharging thousands of patients to free up beds, postponement of planned treatment, moving to remote virtual consultations, re-deployment of staff and re-training of retired staff returning to the NHS.
Given these rapid changes in delivery of NHS health services in the context of an unknown virus, COVID-19 related claims against the NHS were anticipated and have arisen. We may also see a rise in claims following the public UK Covid-19 Inquiry.
Clinical claims
Direct COVID-19 claims
These include claims by patients who contracted COVID-19 whilst in hospital, and those relating to inadequate capacity in an intensive care unit (ICU), insufficient ventilators or oxygen, and patients who have developed pressure sores whilst in hospital, alleging inadequate risk assessments/nursing care.
An unprecedented pandemic is a relevant factor that must be taken into account and causation represents a difficult hurdle to overcome, particularly in staff related claims.
Indirect COVID-19 claims
Sadly we have seen many claims arising as an indirect consequence of the pandemic, for example delay in diagnosis (in particular of cancer), treatment and surgery. We have also seen primary care claims relating to missed diagnosis arising from virtual consultations. Indirect claims represent the majority of those that we have seen.
Claims by third parties
These include claims where asymptomatic patients were discharged from hospital to care homes in the early part of the pandemic, not informed they should self-isolate and both care home staff and residents contracted COVID-19 and died. The claim will be outside the court's jurisdiction if policy related and there will be a 'non-justiciable' defence.
Non-clinical claims
The majority of COVID-19 related non-clinical claims arising in healthcare settings that we have seen, have been brought by employees alleging they contracted the virus or long-COVID as a result of negligent workplace exposure.
It is not sufficient simply to prove that any breach of duty increased an employee's risk of contracting COVID-19. Claimants must prove, on the balance of probabilities, they contracted COVID-19 as a result of the alleged breach of duty, and not from a non-negligent exposure.
The appropriate standard of care and infection control will depend on the circumstances and understanding of the virus prevailing at the time.
Contacts: Christopher Malla and Cindy Tsang
France
Under French law, where a patient seeks compensation for injury resulting from a nosocomial infection contracted within a health facility, there is no need to establish that a mistake was made. COVID-19 became the leading cause of nosocomial infections and claims have been made.
On 14 September 2020, a Decree automatically granted the status of "maladie professionnelle" to healthcare professionals who developed a severe form of COVID-19 that required oxygen. This status enables them to claim compensation.
In 2021, MACSF, the insurer of healthcare professionals, received approximately 100 claims based on COVID-19. The claims relate to nosocomial infections; delays in treatment; diagnostic errors made during e-consultations; and side effects arising from vaccination.
The French Public Health Code is applicable to claims regarding side-effects linked to the COVID-19 vaccine. Patients may refer the matter to the ONIAM (National Office for Compensation for Medical Accidents, Iatrogenic Affections and Nosocomial Infections) to seek compensation. Claimants must prove the causal link between the vaccine and the adverse reactions they have faced. Laboratories may be held liable only in the event of a defect or negligence relating to their product, unless it can be established that scientific and technical knowledge at that time did not allow for the defect to be detected.
Case law relating to COVID-19 is currently limited, and largely relates to claims made against the state.
Contact: Aurélia Cadain
Hong Kong
We have seen a limited number of complaints from individuals who had contracted COVID-19, as the response of most hospitals and clinics to the pandemic was reasonable and the provision of PPE was adequate.
Since the worst period in Hong Kong was the fifth wave of the virus in early 2022, there may be more complaints in 2024, before the claims are time barred by early 2025 (the limitation period to commence court proceedings usually being three years from the date of the incident).
There are some 'indirect' claims, i.e. those relating to postponement of medical consultations/clinical examinations and elective surgeries, resulting in a delay in diagnosis and treatment. Public policy has often proved a successful defence in claims we have seen.
We have also seen a number of complaints relating to COVID-19 vaccines, for example, where expired vaccines have been administered – although often the individuals concerned did not have any specific symptoms.
An indemnity fund set up by the Hong Kong Government provides financial support to those who have suffered serious adverse events associated with COVID-19 vaccines. It is noted, however, that many cases have been declined due to insufficient evidence of a causal link.
Contact: Christine Tsang
Ireland
We anticipate most litigation in the short term will relate to wrongful death claims against nursing homes.
With a public COVID-19 inquiry expected to start next year, there have been calls for a separate inquiry into how the pandemic was handled in nursing homes. To date there has been two aspects to these cases. The first is against the state and the public health advice provided, by the Health Service Executive. The second is against nursing homes and alleged non-compliance with public health advice, and professional standards.
Whilst we have only seen a limited number of cases relating to COVID-19 to date, that may change with the anticipated commencement of the public inquiry.
We also anticipate a growing number of cases relating to delayed and missed diagnoses in the next year.
Contact: Ólan Kelleher
Israel
There have been attempts to bring class actions against the state (the Ministry of Health) and other state institutions (for example Sick Funds, or hospitals) alleging proper measures in response to the epidemic and subsequent pandemic were not taken.
However, such actions were rejected, with civil courts, in which the claims were brought, indicating that any such indirect proceedings against the state would need to be brought in the Supreme Court acting as The High Court of Justice. Whilst some of those class actions were pursued through the Supreme Court, the claims were not successful.
The majority of claims for compensation have been made by family members of elderly individuals, many of whom had died in care homes or hospitals as a result of COVID-19, alleging that staff had not provided sufficient care. In some of those claims, the Ministry of Health was added as a co-defendant, the allegation being that the state did not publish proper regulations or instructions for the staff of these institutions.
To date there have not been any judgments that create a precedent in terms of COVID-19 claims. Nevertheless, in Israel, as the limitation period is seven years, we anticipate that we will continue to see claims being brought.
Contact: Chaim Zelichov
LatAm
With limited public healthcare resources, the public health system was under significant pressure during the pandemic.
Currently there are no final judgments relating to COVID-19 healthcare cases, however, such claims are usually directed towards both medical centers and doctors, with the burden of proof on the claimant.
In Peru, physicians are responsible for damages caused by their acts or omissions, attributable to their wilful intent or gross negligence. Medical centres are jointly and severally liable for the damages caused by physicians who are their dependants.
Medical centres are exclusively liable for any damages caused for failing to provide the necessary means that would have prevented a loss from occurring. This is subject to the provision of such mean being mandatory for the medical services being rendered. Additionally, an administrative proceeding could take place. For example, in the failure to send a request for transfer due to the need of a bed in ICU, a fine of maximum US$141,429 could be imposed, regardless of the amount for liability.
In Brazil, claims are usually directed towards hospitals and clinics due to their financial ability to meet claims for compensation, with medical practitioner(s) included as a defendant due to the requirement to prove culpability against the individual(s) concerned. The hospital/clinic is jointly and severally liable for the damages caused by the medical practitioner.
Contact: Fernando Hurtado De Mendoza
Spain
Lockdown was declared partially unconstitutional by the Spanish Constitutional Court which has led to multiple proceedings against the state. In a recent judgment, the Supreme Court of Spain has stated that despite this finding, the Administration's liability cannot be declared automatically.
Administrative or public liability in Spain implies certain requirements including the existence of a loss, the duty to bear the loss by the citizen and correlation between the loss and the Administration's acts. The key requirement that is rejected by the Supreme Court here in relation to the pandemic is the duty to bear the loss: the Administration had to take extraordinary measures to preserve public health.
Public healthcare in Spain is managed by regional governments that have that competency, rather than the central Administration. This has led to disputes between the two in in relation to liability for the death of patients due to insufficient care in hospitals and nursing homes.
