Is it possible to claim negligent treatment during the COVID-19 pandemic?

Can You Claim For Negligent Treatment During The Pandemic?

Frontline doctors, nurses and support staff have worked tirelessly throughout the COVID-19 pandemic to treat critically ill coronavirus patients.

Unfortunately the focus on the virus has caused huge disruption to healthcare services across the UK, with millions of patients with other serious health issues experiencing delayed treatment for conditions such as:

According to Cancer Research UK, over 2.4 million people in the UK have been left waiting for cancer screening, further tests or cancer treatment due to COVID-19. The charity believe that this disruption has left a “deep rift in cancer care, with 40,000 fewer people starting cancer treatment across the UK last year.”

The question is, if patients have been affected by this delay, do they have a right to redress? If so against whom?

At the start of lockdown in 2020, NICE issued guidelines about the prioritisation of patients for radiotherapy with different levels of urgency for treatment, depending on different categories such as the aggressiveness of the tumour.  

Whilst the prioritisation guidelines have not been criticised, the way they have been applied has, and as a result we may see claims against the NHS for the same. To show this, patients would need to demonstrate that other patients who had been given higher priority did not warrant it, and as a result they are now in a worse position. This is a difficult claim to make and can be distressing for all parties involved.

A further area of cancer care that has been badly affected by the COVID-19 pandemic, is the screening programmes. Bowel, breast and cervical screening programmes were all put on hold at the beginning of lockdown last year, and while they have all now restarted, we may see potential claims by patients who would have had an earlier cancer diagnosis had they undergone the relevant tests and screening at an earlier stage, but the failure to do so meant the diagnosis was delayed.

In bowel cancer cases, the delay has been in performing colonoscopies, as endoscopy procedures are among the worst to be affected by the pandemic. Although the delay could be seen to be due to resourcing issues, if delays continue to lengthen as the pandemic eases, there may well be a case for the NHS to answer to. “The number of patients waiting for an endoscopy hit 200,000 in November 2020 in England, up 49% compared with the previous year” (Cancer Research UK).

Delays in diagnostic cancer testing

Another effect of the COVID-19 pandemic has been the delay in performing diagnostic tests to detect cancer, such as flexi-sigmoidoscopy, cystoscopy, CT, ultrasound and MRI. According to Cancer Research, in England between March and July in 2020 there was a “39% drop in the number of diagnostic tests.” This is equivalent to around 3.2 million fewer tests compared to the same period last year.

Although the initial delays may have been due to COVID-19, if a further negligent delay coincides with this, a claim may be brought on the basis of “material contribution”, in that although the NHS Trust are not solely to blame for the entire delay, they can be seen to have materially contributed.

COVID-19 and lung cancer

Referrals for lung cancer by GPs have plummeted, and it can be argued that this has primarily been due to GPs advising those with a persistent cough to stay home. Of course, this symptom is similar to those with COVID-19 but patients being triaged by telephone can mean that other signs and symptoms are easily missed, and therefore if patients had described their other symptoms alongside the cough, such as unexplained weight loss or coughing up blood, there is a chance that a claim may succeed.

Complex causation

For clinical negligence claim to be successful, it must be identified that a Breach of Duty (negligence) has occurred, as well as causation, i.e. the negligence caused the injury. The difficulty patients will have is trying to differentiate between negligent and non-negligent delays throughout the pandemic. However, this is where the doctrine of material contribution will assist the patient.

If the contribution to the patient’s injury, or death, from a negligent period of delay is more than minimal, and the court cannot separate the contribution from the negligent delay and the non-negligent delay, the patient may still succeed in their claim.

The Bolam Principle

To identify Breach of Duty in a medical negligence case, the Bolam Principle is used, which is that the treating medical practitioner’s actions are compared to how a reasonable body of that same discipline would have acted. As we have seen, due to NHS resource issues, doctors from different disciplines had to act outside of their usual speciality. So for example, if a gastroenterologist treats a patient suffering from COVID-19, how does the Bolam Principle apply for negligence purposes? Who is the “responsible body”? Would it be the gastroenterologist or a respiratory physician? This question will have to be assessed by the Courts, but it is likely that Bolam may not be an appropriate test for coronavirus-related claims.

The pandemic has been a difficult period for everybody, including those fighting on the front line, but it will be very difficult for patients who have been denied potentially life-saving diagnostics and treatment when hospitals were empty or running far below normal capacity. However, things are improving since the COVID-19 vaccination programme started, and we hope that now there is a focus on driving faster and early cancer diagnosis as we emerge from the global pandemic.

Get in touch with our clinical negligence experts

Our team of specialists have experience in handling all types of clinical negligence claims, and understand the emotional and physical impacts clinical negligence can have on individuals and their families. If you or a loved one has suffered as a result of negligence in healthcare, please get in touch on 0808 164 0808 or request a call back, and we will call you.

About the Author

Bhavesh Patel

Bhavesh Patel

Solicitor - Clinical Negligence

Bhav has over six years’ legal experience in clinical negligence, and has managed a range of complex cases for patients who have suffered injuries, or lost family members to negligent treatment.