By David Stoker, Senior Underwriter
(Estimated reading time: 3 minutes, 3 seconds)
The general thread here is that all of our customers will be taking a cautious approach in respect of new COVID-19 related cases. Temple is helping all our partner law firms through these challenging times and wanted to share some of the thoughts and information we have gathered over the last year or so.
Some customers have mentioned they would prefer to wait until the outcome of the Spring 2022 public inquiry. Critics have said that is too far away, although Boris Johnson insists it needs this time not least to agree the way forward with devolved governments. The other issue as we see it is that public inquiries can take a long time to reach conclusions – for instance ‘Bloody Sunday’ required 12 years and the Iraq War 7 years.
A perception exists that a great number of delayed diagnosis cases will present in the near future. It is anticipated that the NHS and other healthcare institutions will receive a great deal of judicial sympathy and only the most extreme cases will succeed. We know that many doctors and surgeons were taken away from their day-to-day work in order to deal with the surge in new infections.
A good example of the thinking here came from a very experienced clinical negligence lawyer; ‘There may be the occasional bespoke case that we may look at, but at present our view is that the circumstances would have to be clear and pretty extreme – and those cases would be risk assessed in team meetings on an individual basis. I have to say it is hard to envisage a case that we would want at present. The firm-wide risk assessment therefore doesn’t change in that these cases for us as they would already fall into the high-risk bracket, meaning that such cases would never be accepted without a litigation meeting discussion and approval’.
Some firms are prepared to take a slightly different view (i.e. unilateral decisions being made to postpone cancer treatment for months due to COVID risks – this is at the very least a risk balancing exercise which will feed into a consent type argument, but in some cases could just be plain wrong as the risk of progression was so much more significant than the COVID risk).
Other views include that bringing a COVID-specific claim (either failure to provide PPE, failure to screen, failure to treat) is likely to be very difficult and will, in all probability, meet resistance from the Courts on policy grounds. The feeling is that the vast majority of such new enquiries would be declined.
Some firms will build COVID risk considerations into their initial risk assessments and some won’t as they will be identifiable and automatically fall into a high-risk category along with vulnerable clients. Whatever method is used to risk assess, a very cautious approach will always be required, and it will take a few COVID-related cases to go through the courts to confirm or disprove today’s concerns.
What we do know right now is that cases are taking longer to deal with, and some have stopped completely for want of such things as medical records. Medical examinations are proving difficult to secure. Some firms have seen a marked reduction in new cases, and some have ceased taking any new ones on until the lockdown eases further still and the whole process can return to what it was pre-March 2020. At least clients are now beginning to see experts face-to-face and one hopes backlogs will clear and we look forward to a better remainder of 2021 and thereafter.
If you have any questions on potential COVID-related cases, please do not hesitate to contact David Stoker on 01483 514808 or send an email to david.stoker@temple-legal.co.uk
David Stoker, LL.B (Hons)
Senior Underwriter
01483 514 808
David Stoker, LL.B (Hons)
David joined Temple in 2015 having previously been an underwriter for another ATE insurance provider for nearly 9 years dealing with all aspects of personal injury work.
David’s experience allows him to undertake a key role in Temple’s ATE insurance personal injury and clinical negligence teams. He also participates in the assessments of delegated schemes that Temple provide with the objective of helping our customers make the most of the products and services Temple has to offer.
David has a LLB honours degree in law and also completed the Legal Practice Course at Guildford College of Law obtaining a commendation. He has worked as a personal injury case handler for 2 firms of solicitors post-graduation before moving into LEI.
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