From the complete lockdown of cities to restrictions on non-essential travel, the COVID-19 pandemic is considered the most critical global health challenge of the 21st century, and has changed our lives in ways we have never imagined. In the UK and across the world, coronavirus (COVID-19) has affected work, businesses and life as we used to know it. This guide will discuss the pandemic’s impact on your health, medical negligence, your rights to a compensation and what you may be entitled to based on your unique circumstances.
We appreciate the tremendous effort that healthcare workers at the NHS have put in to ensure patients who have contracted the virus are treated and the nation keeps functioning. They have also done a fantastic job when it comes to researching and understanding the effects of this new global health challenge. However, other medical conditions that require urgent medical care like cancers, heart problems and strokes have not stopped because of this new disease.
At the peak of the coronavirus pandemic, many persons who would have sought medical attention held back from doing so. Whether that be due to the fear of contracting the virus in a hospital or not wanting to increase the pressure on the NHS. As people are now starting to become more comfortable with visiting hospitals and seeking medical attention, they should expect the same high standard of care they would have received before the pandemic. Doctor negligence cannot be excused under the guise of the country’s struggles with the virus.
At Medical Negligence Direct, we work with a panel of specialist solicitors who are committed to assisting victims of negligent treatment pursue claims for compensation. We investigate whether an individual’s injury or illness was due to the negligent care they received; as a patient-focused team, we understand that medical errors can be made, especially at a time when healthcare facilities are facing increased pressure.
To ensure you and your loved ones are protected, it is important that you understand what medical negligence really means as well as your rights at this difficult time.
Have Medical Negligence Rules Changed Due to Coronavirus?
No. Since its establishment in 1957, the Bolam test has been a huge determinant of medical negligence in the UK, and this will not change as a result of the pandemic. The test considers evolving standards of care and states that a medical professional who reaches the standard of care deemed acceptable by a responsible body of medical opinion is not negligent.
This means that independent medical expert opinion will be needed from a specialist in the same field of medicine as the alleged negligent health professional. For instance, if you think your dental professional has acted negligently, our medical negligence solicitors will need an independent expert dental professional to examine and establish the facts. This independent expert(s) will determine whether the quality of care was such that no other dental professional would have acted in the same way.
One great benefit of the Bolam test is its evolution with time. Rather than setting care standards in stone, the law relies on health professionals working on the specific field to determine what the standards are at a particular time.
Why is the Bolam test particularly key today? Our healthcare service is facing its biggest ever challenge. Therefore, it is surprising that the Medical Defence Union (MDU) is proposing immunity for health professionals from coronavirus-related medical negligence claims. They believe compensation claims will drain the resources of the NHS – and the UK taxpayer. They also thing it will relieve them from the ‘stress and anxiety caused’ by the possible compensation claims in future.
This is not a healthy path, as the UK medical negligence law already provides enough protection against the issuance of unjustified claims.
Here are some reasons why the call for blanket immunity does not feel right:
- Health professionals at the NHS are protected by their employer’s liability. As a result, suing them for doctor negligence will be impossible as the government indemnifies them through the NHS Trust.
- The law already provides sufficient protection for medical professionals as noted above. When considering whether a medical professional has acted negligently, the independent expert will factor the current situation.
- It is important that patients receive protection for negligent treatment. If a patient suffers harm at this time, they reserve the right to lodge a complaint and make a claim. If they can establish a link between the doctor’s negligence and the injury they suffered, they should be able to sue the NHS.
- Doctors take an oath to protect the health of their patients to the best of their ability. Under no circumstances should they be seen to be above the law.
- While most medical professionals will continue to uphold a high standard of care, granting them immunity from claims will mean they are no longer accountable for their actions or inactions.
It is also not exactly clear which parts of healthcare this immunity would cover. Would it include the standards of care expected in surgeries, cancers, or even outside the hospital environment (say our communities)?
What About the General Medical Negligence Claims Time Limit?
The general time limits within which claimants are expected to start their claims (three years from the date of injury or three years from the date the injury was linked to negligence) also remain constant. However, The NHS Resolution (NHSR) in collaboration with the Society of Clinical Injury Lawyers (SCIL) and Action Against Medical Accidents (AvMA) have worked hard during this difficult period to agree a new protocol known as the Covid-19 Clinical Negligence Protocol 2020. This protocol – which took effect in August 2020 – is designed to encourage positive behaviors and consistency from claimants and medical negligence solicitors.
According to the protocol, medical examinations, negotiations and court hearings can be conducted via video conferencing in line with social distancing regulations. As the pandemic may lead to delays in obtaining medical records for claimants, the strict time limits may be made more flexible. Most independent medical experts who provide specialist opinion and advice in medical negligence cases work with the NHS, so we need to appreciate their commitments at this time.
The pandemic could also impact financial losses incurred by victims of NHS negligence. If you are suing the NHS for negligent treatment and financial losses, your solicitor will need to determine whether these losses were affected by the restrictions imposed when the country’s lockdown came into effect on March 2020. For instance, if you suffered negligent treatment in January or February 2020, you would want to pursue claims to recover the losses incurred as well as the cost of care you need. However, the lockdown may mean that you are unable to work at all and no caregiver can enter your home.
Many persons at risk of contracting coronavirus were also placed on the shielded patient list until August 1, 2020. If you were placed on this list, you may have faced restrictions preventing you from pursuing a claim for NHS negligence.
What Does Coronavirus Mean for Victims of Delayed Treatment?
Medical professionals have been at the frontline the UK’s coronavirus fight, working tirelessly to treat patients affected by the virus. However, this focus on patients affected by the virus has disrupted the country’s healthcare services, with other medical conditions now taking the back seat.
At the peak of the pandemic, most routine surgeries were paused, almost all outpatient referrals and appointments were delayed, and tests for conditions like cancer wither either stopped or cancelled.
Delayed treatment due to coronavirus has played a big role in the safety of patients, as it has exposed people to avoidable harm. The huge healthcare disruptions have significantly affected patients with life-threating health issues, including:
- Respiratory conditions
- Kidney disease
- Liver disease
- Heart related problems
Increasing NHS Waiting Times
Before the pandemic, the NHS was already faced with the challenge of keeping up with a large backlog of routine cases. There are currently over 4 million people on the waiting list, and this figure is expected to rise significantly. According to the NHS Confederation, this number could hit the 10-million-mark by the end of this year – or even more as a second wave of coronavirus threatens.
This has understandably caused a lot of patients and families to worry. Many patients have experienced deteriorating health conditions as a result of the delayed treatment. Cancer Research UK states that over 2.4 million persons in the UK have been affected by test and screening delays due to COVID-19.
We work with a panel of specialist medical negligence solicitors who are concerned about how delayed screening and treatment due to the pandemic has affected patient health and safety. Despite setting up temporary Nightingale hospitals in different, most facilities remained unused when coronavirus was at its peak; these additional spaces would have been useful for non-coronavirus patients.
At Medical Negligence Direct, we believe everyone has the right to quality healthcare when they are ill. If you have been denied potentially life-saving medical care while healthcare facilities remained unused or were functioning below capacity and medical professionals were available and willing to provide medical care, this is a breach of your right to access medical care when you need it.
What Does Coronavirus Mean for Redeployed Doctors?
At the start of the pandemic, staffing issues were expected to arise as a result of increasing pressure on experienced professionals fighting the virus. In an email sent to GPs in March 2020, the Health Education England (HEE) stated that the NHS may require GP trainees ‘to work in different clinical areas… in exceptional circumstances. So, can GP negligence lawsuits be filed against doctors who have been redeployed outside of their specialties?
The FB v Princess Alexandra Hospital NHS Trust  at the Court of Appeal is a good case study. The court confirmed here that doctors would only be assessed based on the level of skill appropriate for the role they were playing. If a doctor lacks the requisite skill-set for a particular role, the hospital management will be deemed liable for placing the doctor in a position they were unable to fill.
While this issue remains untested during this pandemic, individual health professionals can rest assured they will not suffer the effects of GP or doctor negligence claims in a hospital context. However, it is important to note that if a patient makes a claim out of these circumstances and within the context we now find ourselves, the facts of the case will reflect our current unique challenges and appreciate the fantastic effort our brave healthcare workers are putting on the frontline.
The impact of COVID-19 on the health and psychology of people cannot be understated. While political leaders must do everything to manage the risks and ensure the most vulnerable are protected, they must also recognize the needs of those with other medical conditions. Holistic patient safety measures must be put in place to ensure everyone – yes, every single individual – feels safe, whether they have already contracted the virus, are on the shielded patient list or have a completely different medical condition.
Contact Our Medical Negligence Solicitors
If you or a loved one has suffered an injury, illness or your condition has been made worse as a result of delayed treatment, incompetence on the part of a medical professional, or delayed/cancelled tests, our specialist medical negligence experts will be happy to offer the legal support you need to navigate this difficult period.
Not only do our specialists have a strong track record of successfully helping victims of medical negligence receive help, we do so with great care and compassion. Before pursuing a claim on your behalf, we conduct thorough risk assessment to ensure there are valid grounds for a claim, as we are mindful of the impact of negligence related investigations on the NHS.
Please get in touch with us today on 0800 644 4240 to speak with one of our specialist medical negligence solicitors or complete our online claim assessment form and we will contact you at your earliest convenience.
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