What is the impact on compensation claims for medical negligence?
It goes without saying that Covid-19 has had a significant impact on all aspects of life, but in particular on those requiring medical treatment for conditions other than Covid-19.
During each lockdown, the rise in the number of people requiring hospital treatment for Covid-19 has meant that those waiting for treatment for other conditions are pushed back.
Numbers waiting for hospital treatment have hit a record high. Almost 4.5million were waiting for treatment in England at the end of November 2020. This is increasing. To compare, the same figure a year earlier OR the previous year was 1,398.
Ambulance wait times have risen significantly. Some Welsh Trusts are having to push back urgent treatment. Time will tell whether these decisions will be deemed reasonable. At this stage, it is very difficult to determine given the pressures faced.
Now, these adjustments to waiting times are not likely to be negligent. To prove negligence, we must show that there was unreasonable care, i.e. that the standard of care received was not to a level that should have been exercised by a reasonable clinician ‘acting at that time’ faced with the same presentations. Given that all Hospital Trusts and GPs have been under the same pressures, the standard of care is not measured against ‘normal’ times, but against the higher stresses and strains of the moment.
What could constitute a breach under the current circumstances?
A breach of duty of care may be seen to occur perhaps in failure to monitor a situation which, though not urgent at that time, had the potential to become so in certain circumstances. It is important that patients are given as much information as possible as to signs and symptoms to watch out for so that they can seek the assistance quickly.
It could also be a potential breach to fail to act upon a test result that would have sparked urgent intervention. These are hypothetical examples and each case turns on its own facts. I suspect that the standard of care bar will not be set nationally but locally, as pressures rise and fall across the country. It is important to bear this in mind.
Covid-19 and causation
Where Covid-19 may have had a significant effect is on causation. Did the breach of duty, that could well have been before lockdowns, lead to an injury over and above that which would have been seen in any event? For example, if a cancer patient was been diagnosed before March 2019, which meant that some treatment would have commenced before the disruptions occurred, what would have led to a better outcome?
A further example would be failure to detect a cardiology condition that needed urgent treatment but this was not commenced and by the time the need was identified, the stresses on the NHS were such that the treatment could not be provided as urgently as it would have been leading to additional injury.
The limitation period for brining a medical negligence claim
Limitation pressures are also likely to be increased due to Covid-19 delays. You have 3 years from the date of the negligence, or the date from which you could have reasonably suspected injury as a result of negligence to bring a claim to court. It is more and more important to speak to solicitors quickly as claims take time to investigate and it is best to do so before Limitation expires. Obtaining records is taking a lot longer than normal as, understandably, vaccine roll out and Covid-19 treatment delays mean that administration is put on the back burner. As such, it is important to give your solicitor as much time as possible to investigate.