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Legal Medicine 47 (2020) 101745 Contents lists available at ScienceDirect Legal Medicine journal homepage: www.elsevier.com/locate/legalmed Letter to Editor Liability claims in Spain post-COVID-19: A predictable scenario T We would like to congratulate Parisi et al. [1] for their necessary assistance in facilities that are not considered healthcare centres [2]. global vision of malpractice litigation in COVID-19 and post-COVID-19 We faced this exceptional situation with exceptional measures, such as pandemic scenario. the incorporation of residents in their last phase of specialization taking We agree with the authors that many stakeholders do not appear to on staff duties, the return to activity of retired professionals or even the have fully understood what a global pandemic crisis means, and what incorporation of medical students for non-care support tasks. In this efforts are being made to contain this emergency situation [1]. Our sense, insurance companies have responded exceptionally well, in- societies and healthcare systems were not ready for the COVID-19 corporating under their coverage the activities carried out by these pandemic and it has raised ethical and medico-legal problems, which professionals [9]. By virtue of the foregoing, we believe that it is ap- included the equitable allocation of health resources, especially in re- propriate to remove HP from any medical professional liability claims lation to the prioritization of patients and the rationing of resources [2]. involving acts related to care for COVID-19 infection, as long as it does Accordingly, consensus documents have been designed, based on not come to mistakes not related to the catastrophic situation. strictly medical criteria and fundamental ethical values [3], backed by Regarding claims against Public Administration, in March 14th, clinical decision scores [4], with the aim of supporting healthcare 2020, the Royal Decree 463/2020 [10] declared the State of Alarm in professionals in making critical clinical decisions. These consensus Spain to better manage the health crisis situation caused by COVID-19. documents have required periodical updating during the pandemic, to As provided in article 1 of the Royal Decree, it was established in order better face such an unknown disease. to “face the situation of health emergency caused by the coronavirus All over the world, healthcare professionals (HP) worked extra COVID-19”. It means that the Spanish government predicted an in- hours and, no matter their specialization, many medical doctors and crease in the pressure on healthcare, a catastrophic scenario and its nurses were transferred to COVID-19 medical teams or COVID-19 consequences. Therefore, we believe that there are three fundamental dedicated Intensive Care Units. At least at the beginning of the pan- obstacles that can prevent these claims from thriving: 1) COVID-19 demic, HP at the frontline risked their lives because of a widespread pandemic can be considered a case of force majeure (which para- lack of personal protective equipment and testing facilities. In Spain, digmatically entails the exemption from liability), 2) the unlawfulness there have been especially traumatic situations in socio-health care of the damage, so the guilt must be proven by the injured party, what centres that manage elderly patients with many comorbidities and requires an individualization of each case and makes it even more fighted against the pandemic in a catastrophic scenario, with lack of difficult to prove the above, and 3) the difficulty to establish a causal supplies. There has been a clear conflict between the doctors’ duty to relationship between the alleged deficits in the management of the care for patients, and their rights to protect their own health and their crisis by the Public Administration and the specific damage caused. families and loved ones [5,6]. Yet, exposure to infection is an in- It is well known that there are important differences in the laws and herent occupational risk for HP [6] and our Criminal Code penalizes HP legal procedures that rule the way we deal with malpractice liability who “fails to provide assistance” to a person in need, but workers claims across countries. Therefore, the solutions applied with success in should be guaranteed proper supplies to protect themselves. Until May one country cannot be completely extrapolated to others. Nevertheless, 11, 2020, 40,921 cases of COVID-19 in HP (76% women) had been the knowledge of the different country-to-country scenarios, through notified to the National Epidemiological Surveillance Network (RE- multiple legal approaches, can help us to get a comprehensive picture NAVE) in Spain, representing 24.1% of the total cases declared to RE- and to find the right strategy for each of our legal frameworks. We NAVE, with 53 HP deaths reported [7]. The 66% of these HP have had know that no single approach will provide the definitive solution to the contact with people with respiratory infection as an epidemiological problem. However, we will be satisfied if our paper contributes to im- risk factor, and 71% have had close contact with probable or confirmed proving the overall portrait. cases of COVID-19, which undoubtedly supports the professional origin of the contagion. Therefore, the General Council of Official Medical Funding Associations of Spain has requested the development of the necessary legal measures in order to recognize the COVID-19 and its consequences This research received no specific grant from any funding agency in on HP as a professional disease for legal purposes [8]. the public, commercial, or not-for-profit sectors. According to Spanish legal framework regarding to professional li- tigation claims, both HP and the public administration can be claimed. References Regarding claims against the HP, we strongly believe that during the COVID-19 pandemic catastrophic situation, HP have provided their [1] S.G. Parisi, G. Viel, R. Cecchi, M. Montisci, COVID-19: the wrong target for services under unconventional situations and frequently inadequate healthcare liability claims, Leg. Med. 46 (2020) 101718, https://doi.org/10.1016/j. legalmed.2020.101718 Online ahead of print. occupational health conditions, performing procedures usually reserved [2] C. Martin-Fumadó, E.L. Gómez-Durán, M. Morlans-Molina, Consideraciones eticas y for professionals with specific qualifications, and sometimes providing médico-legales sobre la limitación de recursos y decisiones clínicas en la pandemia https://doi.org/10.1016/j.legalmed.2020.101745 Received 3 June 2020; Accepted 26 June 2020 Available online 02 July 2020 1344-6223/ © 2020 Elsevier B.V. All rights reserved. Letter to Editor Legal Medicine 47 (2020) 101745 del COVID-19, Revista Española de Medicina Legal (2020), https://doi.org/10. la infección por COVID-19 en el ámbito laboral, Revista Española de Medicina Legal 1016/j.reml.2020.05.004. (2020), https://doi.org/10.1016/j.reml.2020.05.011. [3] E.J. Emanuel, G. Persad, R. Upshur, B. Thome, M. Parker, A. Glickman, et al., Fair [9] Société Hospitalière d’Assurances Mutuelles. #COVID-19: Sham extiende las Allocation of Scarce Medical Resources in the Time of Covid-19, N Engl J Med. garantías de las pólizas de RC de los profesionales sanitarios. Avalaible at: http:// (2020), https://doi.org/10.1056/NEJMsb2005114 Epub ahead of print. www.sham.es/Prensa/Notas-de-Prensa/COVID-19-Sham-extiende-las-garantias-de- [4] G. Persad, A. Wertheimer, E.J. Emanuel, Principles for allocation of scarce medical las-polizas-de-RC-de-los-profesionales-sanitarios Access 03/06/2020. interventions, Lancet 373 (2009) 423–431. [10] Real Decreto 463/2020, de 14 de marzo, por el que se declara el estado de alarma [5] F. Bakewell, M.A. Pauls, D. Migneault, Ethical considerations of the duty to care and para la gestión de la situación de crisis sanitaria ocasionada por el COVID-19. physician safety in the COVID-19 pandemic, CJEM (2020) 1–6, https://doi.org/10. Boletín Oficial del Estado, número 67, de 14 de marzo de 2020, páginas 25390- 1017/cem.2020.376 Epub ahead of print. 25400. [6] E.L. Gómez-Durán, C. Martin-Fumadó, C. García-Forero, The psychological impact of quarantine on healthcare workers, J. Occup. Environ. Med. (2020), https://doi. C. Martin-Fumadóa,b,c, , E.L. Gómez-Durána,b, J. Benet-Travéa,c, ⁎ org/10.1136/oemed-2020-106587 Epub ahead of print. [7] Equipo COVID-19. Red Nacional de Vigilancia Epidemiólogica (RENAVE).. Informe E. Barbería-Marcalaind, J. Arimany-Mansoa,c sobre la situación de COVID-19 en personal sanitario en España a 21 de mayo de a Barcelona’s College of Physicians, Barcelona, Spain 2020. Avalaible at: https://www.isciii.es/QueHacemos/Servicios/ b VigilanciaSaludPublicaRENAVE/EnfermedadesTransmisibles/Documents/ Universitat Internacional de Catalunya, Barcelona, Spain c INFORMES/Informes%20COVID-19/COVID-19%20en%20Espa%C3%B1a. Universitat Autònoma de Barcelona, Barcelona, Spain d %20Situaci%C3%B3n%20en%20Sanitarios%20a%2021%20de%20mayo%20de Ministry of Justice, Spain %202020.pdf Access 01/06/2020. [8] G. Martí-Amengual, P. Sanz-Gallen, J. Arimany-Manso, Valoración medicolegal de E-mail address: carles.martin@comb.cat (C. Martin-Fumadó). ⁎ Corresponding author at: Barcelona’s College of Physicians, Barcelona, Spain. 2