Duty of care - could a Hospital Trust be held legally responsible for infecting a patient with Covid-19 through its doctors

Recently a leading surgeon said that all NHS staff should be routinely tested up to twice a week for Covid-19 in order to reassure patients that they will not unwittingly be infected during treatment or in consultation with their treating doctor.

Research shows that many patients are not seeking treatment from their doctors because they fear that they may become infected with the deadly virus if they come into contact with them in a hospital setting. If patient health and safety is to be safeguarded they need to be confident that their treating doctor and medical team are free from infection and not a health risk to them.

It is well established that there is a common law duty of care between hospital and patient not to cause harm to the patient but does that duty extend to protecting patients from contracting the disease through dealings with their doctor?

There have been cases where a trust has been held liable for infecting a patient with HIV but this is usually in circumstances where it can be established that no reasonable steps were taken to prevent the transmission eg failing to properly dispose of needles safely thereby causing injury.

In the case of Covid-19 the wearing of masks and the availability of testing would be factors to take into account to determine whether there is a breach of duty. 

If testing is readily available but not undertaken against a background of an increasing number of cases of transmission between doctor and patients it may not be long before the issue of duty and breach in these circumstances comes before the court.