Covid and future negligence claims

Covid and future negligence claims

Recently I virtually attended the excellent digital APIL conference, which was a fantastic success and incredibly engaging. Over the course of the conference, the impact of Covid was a part of several discussions. It was during one of these discussions that a troubling statistic from the Lancet(1) was shared about the potentially significant loss of life resulting from delays in access to cancer care, an additional three and a half thousand deaths within five years. A disturbing enough prospect in itself. But it leads to an uncomfortable question that needs to be handled with reasonableness and sensitivity – what level of substandard care should be allowed for in a pandemic, and what is unacceptable enough to warrant a claim?

I want to stress at the outset that this is not a call to arms. We’re still in the midst of the crisis and it is important to recognise the excellent work that the vast majority of NHS staff are doing in a difficult and unprecedented situation. However, we do need to acknowledge the fact that at times, care will still fall short of standards and that patients are still suffering as a result. Where is the line between deciding what an acceptable result of Covid and what is not?

The pandemic has undoubtedly placed significant strain on medical professionals trying to react and adapt to the threat, whilst maintaining – as far as possible – non-Covid care. They are also working within different treatment timelines, as a lot of non-Covid referrals and treatments are being delayed. However despite this, I do believe that people attending hospitals or GP surgeries should expect at least a minimum standard of care. The pandemic should not be a ‘cover-all’ excuse for all substandard practice and instances should still be investigated.

Good practice in a pandemic is not only possible but happening all over the country and I point to my own local GP surgery as an example. Early on, they implemented several steps to proactively adapt to the risk. They had an online appointment system with patient training on how to use it, a telephone triage process, a one-way route into and out of the surgery and car park consultations when possible. When I had to contact them about a potential melanoma, there was a short but acceptable delay which was clearly explained, followed by a well organised and safe examination.

It needs to be considered as well that the impact of the pandemic on the NHS has not been static – the level of strain has fluctuated due to a changing demand on resources and our ever-improving understanding of the virus. For instance, routine screening largely was significantly delayed at the beginning of the pandemic, partly due to resources and partly down to our lack of understanding about transmission rates and vulnerability. This was a reasonable response to an unknown and potentially risky situation. But now however, we know that in the general population, under 70’s without underlying conditions are in the lowest risk category for Covid-19 mortality. Subject to the necessary safety procedures being put in place, there is no reason why screening cannot be recommenced with low risk categories.

This has already started happening in some Trusts following NHS advice and I’m hopeful that others quickly follow their lead. But it is not just cancer screening that has been delayed this year – there are many referrals and treatments being put on hold due to Covid and for this to be considered reasonable, it is vital that amendments to usual screening, referral and treatment plans are constantly reviewed in light of changing scientific evidence regarding patient vulnerability and potential risks. As soon as there is evidence it is safe to resume treatments, action needs to be taken to determine how best to begin reducing delays. It will be this failure to do so that will lead to delays being considered unreasonable, and any resulting injuries and loss of life falls over the line into unacceptable. Which leads me on to a most important question in these scenarios – who has ownership of these decisions?

As lawyers we must be able to consider and answer this question. My view on this is that our investigations are going to have to be much wider, almost encompassing an occupiers liability and potentially even employers liability scope. We may even need expertise of health and safety professionals on whether surgeries and even hospitals adhered to government guidance. This would be in respect of both locations not protecting staff and patients effectively but also patients being refused access to treatment due to locations not being able to cater for them when they really should have been. This could in turn widen the scope of defendants to building management companies and the owners of practices instead of the practitioners themselves.

Once responsibility is established causation will no doubt present a unique difficulty in the current climate. Referrals are, understandably taking longer. This will of course lead to the argument that a missed diagnosis does not matter as the claimant would not have been seen in any event. Again I feel that this instead brings into the debate the changing of our understanding of the disease; for instance is it right for a hospital to continue to refuse or delay certain investigations when we now know who is at greater risk. If a GP breaches duty by failing to refer in a region where referrals are wrongly delayed due to the local trust failing to prioritise the right patient, whose responsibility does that become?

In respect of plotting a way forwards I would argue that the greatest leeway in respect of the expected standards of care should be given at the commencement of lockdown until the easing of the same. This would match our learning curve of understanding of the virus. I would also suggest an automatic stop to the limitation clock for any potential claim to recognise that claimant's would likely have more important things to do than contact a lawyer. As a household that had two jobs, childcare and homeschooling I can relate.

As stated at the start, this is not a call to arms. It is an opinion on how we should look forwards. Unfortunately it may raise more questions than it answers but I do think we need to explore these answers. That probably leads to you, the reader, how do you think we should tackle this incredibly complicated situation we find ourselves in?

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