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Dr Luke Evans is a member of the Health Select Committee, and is MP for Bosworth.

One of the great privileges of being a Member of Parliament is that it gives you a platform to campaign for important causes which you believe are otherwise flying under the radar of Government’s attention.

Over the years there have been important examples of backbench MPs taking on issues – none more so than in the shape of Johnny Mercer who has perhaps become the poster child, arguably in more ways than one, of being the embodiment of a campaigning MP.

His work defending servicemen at risk of being prosecuted for historical allegations has been inspirational to many a backbencher.

Of course Johnny was relatively unusual because, being a former army officer, he understood the pressures servicemen were put under in the theatre of battle. He rightly wanted to highlight that there is a different burden of expectation for a soldier following orders in conflict than there is under normal circumstances.

At the height of his campaign he wrote in a letter to then Prime Minister Theresa May “As you know, the historical prosecution of our servicemen and women is a matter that is personally offensive to me. Many are my friends; and I am from their tribe.”

Johnny’s campaign is something that resonates with me right now. My tribe is medics, and whilst I’m more at home with a stethoscope than a rifle, it’s very easy to draw parallels with a scenario that is rapidly unfolding for doctors during this Coronavirus crisis.

Healthcare professions, when it comes down to it mainly manage risk.

You can train a technician how to do bypass surgery; the surgeon earns their worth by knowing when to put the knife to the skin. In GP land, a doctor uses their skills to decide if your headache is caused by stress due to work or family life, or actually down to an underlying brain tumour.

Taking a history or symptoms, doing an examination and possibly ordering tests are all used to help manage that risk.

Of course, just like anyone in any other walk of life, doctors can make mistakes – only when we do these can literally be a matter of life and death. To that end all medical professions have medicolegal insurance. In recent years the bills associated with indemnity have skyrocketed, for GPs often into five figures, and so much so that last year the government introduced state backed indemnity.

Litigation in the medical world was a problem long before Covid.

It’s a problem which has led to doctors practicing “defensive medicine”. The principle that “if I get this wrong I may get struck off” sits firmly at the front of most practitioner’s minds.

So if you present with your stress headache for a third, fourth or fifth time then you ask the question when should you scan? How far are you going to go to prove it isn’t cancer? How far are you going to go to risk your career?

But what about those who make incredibly difficult decisions due to circumstances they find themselves in? Will they fall prey to lawyers looking for their next no win no fee victory?

The Medical Defence Union are concerned – so much so that they are petitioning government to adopt emergency laws and, during recent Health Select Committee proceeedings, I questioned the Chair of the Healthcare Providers, Chris Hopson, and asked him whether those who lead our hospitals and NHS trusts are equally concerned? He confirmed that they are.

Medical claims often take years to surface and with the benefit of hindsight how will they be reviewed? Will a patient whose clot on the lung was missed because he was diagnosed with Covid during a phone consultation be victorious in court? What will the courts’ approach be because he wasn’t diagnosed in ‘normal times’?

Defensive medicine is a concept which may intellectually go against years of training and logic, but it keeps us legally protected. The worry is that defensive medicine just doesn’t work in the wartime setting of the Coronavirus, and doctors could easily find themselves fighting the same battles that Johnny has fought so valiantly on behalf of servicemen.

Right now, doctors can’t behave in the way that we normally would, and if we don’t and the patient just happens to be right, what happens when the medical negligence lawyer comes calling?

Some doctors are already writing on notes that diagnoses are being made under “Covid-19 conditions” in the vague hope it might act as some protection, no one knows if that will mitigate a legal action, yet in the present climate what other choice is there?

No doctor should ever be above the law but there has to be a recognition that, for now, the practice of medicine is not normal. This is not a call to relax current laws. Nor is this a call to say this is one doctor trying to protect his kind. Far from it. It matters to us all; patients, tax payers and society as this legal stuff costs. A lot.

It is the realisation that NHS’s total liabilities for clinical negligence claims, paid from NHS funds before Covid were estimated at £83.4 billion, and will have risen substantially since then.

Doctors need greater clarity and government needs to provide it. What will happen when a medic has been unable to accurately diagnose due to the altogether understandable limitations brought about by coronavirus?

Without that recognition, doctors will be become the medical equivalent of servicemen at risk of prosecution for historic allegations. And in the words of Johnny Mercer that is a matter that is personally offensive to me. Many are my friends; and I am from their tribe.

28 comments for: Luke Evans: The virus – and why the litigation nightmare that haunts our servicemen now also threatens our doctors

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