Could I face a class action if I fail to diagnose a patient with COVID-19?
Yes! The risk of this presently seems small given the current low rate of community transmission in Australia. However, there only need to be 7+ persons affected in a class action. This is certainly possible if there is an outbreak, for instance, at a workplace, detention centre or aged care facility.
Covid-19 Class Actions
There are many situations that could give rise to a class action because of the pandemic. Claims against travel companies for cancellations, claims by employees who contract the virus at work and constitutional challenges to the restrictions on personal liberty come to mind.
The Ruby Princess saga is an example. Shine Lawyers are investigating an action on behalf of all 2,700 passengers against the owners and operators of the Ruby Princess “for failing to safeguard and protect its passengers from the impact of Coronavirus (COVID-19), despite allegedly having existing knowledge of the Coronavirus contamination”.1They are also investigating the actions of government authorities regarding the docking and disembarkation of the ship despite 158 cases of illness on board. Since disembarkation, over 440 people have been diagnosed with COVID-19.
In the health care context, class actions in Canada were brought concerning the allegedly insufficient measures taken to prevent the spread of the SARS virus.2 Claims against hospitals (including doctors)3 for failures to adequately plan for the control, diagnosis and treatment of the disease concerned the use of respiratory equipment, proper isolation of known or suspected cases and the adequacy of systems to protect other patients and visitors.
Similarly, Australian health care facilities and professionals are required to have proper systems in place to deal with an outbreak. Doctors could be held liable for failing to recommend testing or failing to advise patients to go directly home and avoid public spaces after COVID-19 testing. Claims may also arise where testing results have not been advised to patients in a timely manner, or where inaccurate results are communicated.
We could also see claims against testing facilities, laboratories, and manufacturers or suppliers of testing equipment and PPE relating to failures to diagnose or protect against the virus.
In failure to diagnose cases, the outcome could be dire if a patient transmits the disease to others quickly. The risk of a second or third wave, as well as the known instances of “super spreaders”, suggest that the situation has the potential to remain volatile for some time pending a vaccine or treatment. The reproductive rate, which is context specific, has been variably assessed at between 1.2 and greater than 44 since the pandemic began, accounting for the steep curves that we have seen on the various graphs.
- Class actions at a glance
What is a class action?
- Class actions are a concept that originated in the United States.
- Most class actions in Australia are commenced under the Federal Court regime which has been in place since 1992. It has largely been copied by the Victorian, New South Wales and Queensland governments. Western Australia has a similar Act currently before parliament.
- A class action may be commenced where:
- 7+ persons have claims against the same person or entity;
- The claims arise out of the same, similar or related circumstances; and
- The claims give rise to a substantial common issue of fact or law.
- The claim is then brought by one, or small number of persons who represent the class.
- Australia follows the “opt out model”. This means all persons who fall within the class definition are members of the class unless they opt out of the proceeding. This requirement is often circumvented by how the class is defined (i.e. only those who sign a retainer with a law firm).
- Settlements must be court approved to ensure they are in the best interests of the class – similar to in claims brought by minors.
- Class actions are often backed by litigation funders who assume liability for respondent costs if the class loses, and receive a portion of settlement monies and recover their costs if the class is successful. These arrangements have come under scrutiny of late.
- Currently there are 96 class actions in the Federal Court. Most are commenced in the Commercial and Corporate or Industrial Relations practice areas.
Australian class action examples
- The largest damages award for a class action in Australia was $500 million in the 2009 Victorian bushfire case. That class action was filed on behalf of around 10,000 survivors and those that passed away.
- Recently the CFMEU had said that it intends to pursue a class action for unpaid entitlements following the Rossato v Workpac decisions.
- The $212.5 million settlement of the PFAS contamination class action has now been approved by the Federal Court.
- Relevant to the healthcare industry are mass tort and product liability claims. A recent example are the mesh class actions brought against the manufacturer and distributor of certain products. In November 2019, the Federal Court found in favour of the class.
- Novel issues in COVID-19 cases
If a doctor or healthcare provider fails to diagnose a patient with Covid-19, the class of infected persons will still need to establish this was the result of negligence. A court will look to apply the well-established common law principles to the unprecedented factual situation.
Novel issues in Covid-19 cases could include:
Is it negligent to fail to diagnose COVID-19?
Health professionals owe a duty to take reasonable care when assessing and treating patients. What this means in a given case comes down to the individual circumstances. In COVID-19 cases this will include considering the information available about the risk, community transmission rates and testing options at time, amongst other things.
Cases where a patient has Covid-19 symptoms in a hot spot where their GP does not suggest testing (despite this being available and recommended) would be a very different scenario to a patient presenting with no COVID-19 symptoms in a remote area with no known COVID-19 cases. The context has also evolved over time, with access to testing and PPE availability both increasing significantly since the early weeks of the pandemic in Australia.
Courts will need to take a flexible approach when assessing the appropriate standard of care. In the disciplinary context, AHPRA and the National Boards acknowledge that there may be a need to adjust established procedures to provide appropriate care in response to the pandemic.5 They encourage practitioners to take into account relevant information about resources, guidelines or protocols in place at the relevant point in time and to work with colleagues and people using services, use professional judgement to assess risk and continue to focus on delivering safe care informed by relevant guidance and valued principles.
Do I owe a duty to an unlimited number of third parties?
Doctors can owe a duty of care to third parties.6 The question will depend on the magnitude and foreseeability of the risk of infection, and the vulnerability of the particular class of persons to becoming infected.
It will also depend on what steps were reasonable to protect against the risk of infection in all the circumstances, including the likely seriousness of the harm and the burden of taking precautions.
What would be the limit of my liability?
The negligence of the doctor needs to be a necessary condition of the harm suffered. The court will also consider whether it is appropriate for the scope of the practitioner’s liability to extend to the harm suffered.
In some cases, the issue would be clear-cut. Because of the failure to diagnose a patient, that patient went on to infect many others.
However, the court may also need to consider any other possible and more likely causes of the third party’s infection. Contact tracing including via the Covid Safe app may form part of the evidence on this issue.
What payout would the class receive?
If successful in a claim based on infection with the virus, the class would receive the same types of damages available in personal injury claims – amounts for pain and suffering, past and future loss of earnings, past and future care and medical expenses and other out of pocket expenses.
These amounts may not be significant in all cases. They will depend on the length of the infection, impact on a person’s ability to work and extent of their treatment. It may also be relevant to consider the long term consequences of the infection for the individual – which may itself be the subject of conflicting medical evidence given the lack of historical data regarding the virus.
COVID-19 has changed most aspects of our lives. Medical negligence claims will not be an exception. As well as claims arising directly from infection, there are also the indirect consequences of the pandemic. This may include cases of patients who have deferred investigations or medical treatment because of the virus. Some patients may have been triaged due to COVID-19 risk factors and not clinical need.
The awareness of risk and community transmission at the time, relevant guidelines and protocols and testing and PPE availability will all be important in determining whether particular conduct met the relevant standard of care.
Mitigating the risk of these claims is no different than for other medical negligence claims. This includes listening to patient complaints and concerns, taking a proper history, keeping good documentation of that history, clinical presentation and the decision making process, seeking advice from colleagues where appropriate and keeping up to date with the relevant guidelines and transmission rates.
The courts and regulators will need to be flexible in the circumstances given the unpredictable and significant impact of COVID-19 on the healthcare system. We can be grateful that in Australia to date infection rates have been lower, and impacts on the healthcare system less dramatic, than initially forecast.
2Williams v. Ontario, 2009 ONCA 378 (CanLII) https://www.canlii.org/en/on/onca/doc/2009/2009onca378/2009onca378.html
3Abarquez v Ontario, 2009 ONCA 374 (CanLII). http://www.ontariocourts.on.ca/decisions/2009/may/2009ONCA0374.pdf
5See their Statement dated 13 March 2020 available here: https://www.ahpra.gov.au/News/2020-03-12-Statement-from-the-National-Boards-and-Ahpra-COVID-19.aspx.
6See, eg, Hunter and New England Local Health District v McKenna  HCA 44. In the case of BT v Oei  NSWSC 1082, a Court held that the partner of HIV positive patient, was owed a duty of care by her partner’s doctor to diagnose her partner’s infection and give him proper advice and counselling on the need for a HIV antibody test.