Will COVID-19 lead to a surge in clinical negligence claims?

The NHS is a fantastic institution, and we are all very much aware of the increased demand on its skill and resources which has been brought about by Covid-19. There is the need to treat people who are seriously ill with a previously unknown and not yet wholly understood disease, while working out the safety measures required to stop its spread in hospitals and surgeries. There is also the serious knock-on effect on people with other health problems – whether already known or not yet diagnosed. At his press conference yesterday, Professor Chris Whitty, Chief Medical Officer for England, was keen to emphasise that while the NHS is dealing with a significant number of Covid-19 cases there will be:

  • reduced treatment for other diseases
  • a reduction in early diagnosis, making subsequent treatment more difficult and possibly less successful, and
  • an adverse impact on disease prevention programmes.

The British Medical Association estimates that in England alone more than 500,000 operations and treatments, including over 20,000 cancer treatments, were cancelled or delayed between April and the end of June because of the coronavirus pandemic. It also estimates that more than 2,500,000 first-time outpatient appointments were cancelled during the same time period. Over 40% of doctors taking part in the survey reported that they were treating patients with conditions which had progressed to a later stage than they would normally expect.

A paper published by the well-respected journal Lancet Oncology predicted that there would be 3,500 avoidable deaths from cancer in England over the next five years due to a delay in treatment related to Covid-19.

People are undoubtedly going to come to harm which in normal times the NHS would prevent. Will this lead to an increase in the number of successful clinical negligence claims?

The answer is that we do not know yet, that doctors should not worry, and that specialist solicitors will have a constructive role to play. It will remain the case that clinicians will be safe from any finding of negligence if they have acted with reasonable skill and care in the extraordinary circumstances of a pandemic. The law only ever requires them to do what a reasonably competent person in their job would do.

The risk : benefit analysis for some treatments for some diseases will be changed, and part of every doctor’s duty will still be to explain the treatment options available so that patients have the information they need to make properly informed choices.

It may be that new legal issues will arise about where responsibility lies for the provision and allocation of resources. To decide those issues the Court will look at arrangements for and by the NHS as a whole.

We all want to support our NHS and the brilliant work it does. On the rare occasions when things go wrong, we all want to learn lessons for the future and make sure the injured patient (or bereaved family) can get their life back on track. Our legal system will continue to have an important role to play in that.

Moore Barlow has a team of specialist clinical negligence solicitors. Unusually, many of us have an NHS background. If you think we might be able to help, please contact us. We are always happy to speak informally to work out whether or not a solicitor is what you need.