Medical negligence and the Covid-19 pandemic

Covid-19, also commonly referred to as coronavirus, is a new strain of a large family of viruses which affects your lungs and airways. The main symptoms of coronavirus are a high temperature, a new, continuous cough and a loss or change to your sense of smell or taste.

As the strain is new, there is currently no vaccine. There is a race across the world to find an effective vaccine as soon as possible.

Can I still bring a claim against the NHS whilst the pandemic is still prevalent?

In short, yes. Coronavirus does not exempt doctors from medical negligence claims.

Understandably, the occurrence of the pandemic has turned life as we know it completely on its head and we have all had to adapt. We have great admiration for the National Health Service and those working in the medical profession who work tirelessly to treat patients who have contracted the virus and research, understand and learn the effects of this new disease.

However, other illnesses and diseases aren’t aware that the world is suffering a crisis and people are still developing cancers, suffering strokes, heart attacks and having accidents which necessitate urgent medical treatment.

At the height of the pandemic, many people who would have ordinarily attended hospital or sought advice from their GP about medical conditions have resisted from doing so. Whether that be out of fear of attending a hospital and risking contracting the virus or not to add to the burden of the NHS.

As people are now starting to seek medical treatment, they should be able to expect the same standard of care they would have done prior to the pandemic. A misdiagnosis of a condition cannot be excused because the country is dealing with coronavirus.

At Stephensons, we have been assisting victims and families involved in medical accidents for many decades and are specialists in identifying cases which are negligent. If you have suffered due to a medical mistake, a delay in diagnosis of a condition or poor treatment then you should have the freedom to choose whether to investigate a claim.

It is important to understand that the compensation paid out in such claims does not come from the same “pot” which funds medical treatment, research or pays for the salaries of the medical professionals.

Can I make a claim if my relative has died as a result of contracting coronavirus?

Families of healthcare staff who have died as a result of coronavirus could be entitled to a £60,000 payment from the government. For more information please go to www.gov.uk.

For the remainder of us, you may be able to bring a civil claim if your loved one has contracted covid-19 whilst an inpatient at hospital or in a care home. However, it will be difficult for a number of reasons to establish a claim.

Most personal injury and clinical negligence cases are funded by way of a no win no fee agreement and these are usually accompanied by an insurance policy known as an after the event policy. Some insurers have made the decision not to insure covid-19 cases and therefore it may be difficult to secure funding to start your investigations.

If you do manage to get over that hurdle, there will be additional problems in satisfying the tests to bring a claim. You have to prove that there has been a breach of duty of care and as a direct result of that breach of duty, your loved one has contracted coronavirus and that has caused their death. This, in itself, will cause a number of evidential difficulties which would need to be examined on a case by case basis.

Should I avoid seeking medical treatment whilst the coronavirus is still around?

No. If you need medical attention then it is imperative that you seek advice. It is important to know that there are many different ways in which you can receive advice, depending on the severity of your condition. This could come from Pharmacists, General Practitioners, NHS 111, NHS website, Walk in Centres or Accident and Emergency. The NHS website – www.nhs.uk/contact-us/get-medical-help provides useful guidance.

Have there been any changes to pursing a claim for clinical negligence due to the pandemic?

The usual time limits in which to bring a claim (3 years from the date of the negligence or 3 years from the date of knowledge) still apply.

However, clinical negligence specialist solicitors, such as Stephensons, and the NHS Resolution have worked hard over the past few months to agree a new protocol (Covid-19 Clinical Negligence Protocol 2020) to encourage the parties to collaborate and behave in a positive way. The protocol encourages remote medical examinations and court hearings or settlement meetings to take place via video conferencing to ensure social distancing is in place and to limit the exposure to the virus.

We have also agreed to be more flexible with the strict time limits in which to bring a claim as there may be unavoidable delays in obtaining medical evidence. Most of the medical experts who provide specialist reports to support a clinical negligence case work in the NHS and therefore we have to be mindful of their clinical commitments at this time. Clients can be assured that if an expert is dealing with their case, this is not in any way adversely affecting the doctors’ ability to carry out his/her NHS duties.

Another impact that the pandemic may have on your case could relate to the financial losses. Your solicitor will need to investigate whether your financial losses or need for care would have been impacted due to the strict restrictions which were imposed during the lockdown which came into effect on 16th March 2020.

For example, you may have suffered from medical negligence in February 2020 and would usually seek to recover your lost earnings and need for care and assistance. However, due to the lockdown, you may not have been able to work in any event. Also, as there were restrictions on who could enter your home, you may not have been able to have people providing you with help.

Many people were also “shielding” until 1st August 2020 and depending on your medical condition, you may have been restricted due to being on the shielding list in any event.

What should I do if I wish to bring a claim against a doctor or health professional?

It is important that you seek advice from a specialist clinical negligence solicitor. Not only do specialists, like Stephensons, have a longstanding history of successfully assisting clients who have suffered medical accidents, we are also mindful of the potential impact the investigations can have on the NHS. We thoroughly risk assess cases with the assistance of our in house medical experts and only pursue claims with the NHS when there is sufficient merit to do so. We are also a party to the Covid-19 Clinical Negligence Protocol so can work collaboratively with the NHS to bring your case to a conclusion.

If you or a family member have a clinical negligence enquiry then please contact us on 0161 696 6165 and speak to an expert medical negligence solicitor today. Alternatively you can complete our online contact form and a member of the team will contact you directly.