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Covid-19 clinical negligence and personal injury claims – now a herd of elephants

By Matthew Best, Senior Underwriting Manager

(Estimated reading time: 4 minutes, 34 seconds)

In February, my article ‘The elephant in the room?’ took a look at the key issues for Covid-19 clinical negligence claims and some likely case areas. In this update I have further thoughts on that topic, but also consider other types of litigation, including a potential ‘minefield’ of concerns surrounding nursing/care homes.

I’d like to start with my view  that there will be a significant rise in personal injury claims resulting from the pandemic.  Whilst I recognise that NHS staff performed heroically treating Covid-19 patients, there will inevitably be focus on certain aspects of the care provided; particularly at the start of the pandemic in early spring 2020. Then there are the NHS (or Scottish Government) decisions’ concerning the treatment prioritisation and screening of patients.

Another area of scrutiny is the decision to move elderly hospital patients out of the hospital system into nursing and care homes; most without a Covid-19 test.  It was widely reported this decision was made to clear space for an anticipated significant increase in Covid-19 patients.

Perhaps a look into ITU bed occupancy in each hospital is warranted to ensure this was a necessary action? It has been reported to me that certain hospitals did not actually have a shortage of ICU beds, and that occupancy levels were no higher than expected for the time of year.

Due to care/nursing home staff being unaware of the condition of the patients sent to them, it seems highly likely many of them unknowingly passed the virus on to both staff and other residents, causing a spike in care home infections.

This sadly lead to a significant increase in the number of deaths one vastly in excess of what was expected at that time, or indeed, any time of year. Hindsight may be easy, but this was clearly a questionable strategy.

So how should those cases be approached? In my opinion anybody running such a claim will need to review the initial decision taken by the referring hospital or doctor i.e. who took it, when and relying on what information?

  • A case should focus on what the doctors knew or ought to have known about the medical condition of those patients; in particular, were they likely to be in a category of patients who may already have Covid-19?
  • The same can be said for a delayed diagnosis of cancer patient, which I touched upon previously. If the answer to any such questions is yes, then the courts ought to conclude there was a duty of care on the part of the referring doctor/hospital.
  • This would be to either test the patient prior to discharge or, at the very least, inform the care home staff that the patient being transferred had not been tested and therefore in a category of all patients who may have Covid-19. Had they done so, protective measures would presumably have been put into place.

On any rational analysis of the published figures, it appears this policy of not testing prior to transfer led to many more deaths in nursing homes. Deaths that might have been prevented had the hospitals tested many more patients.

It will not be until the first cases come through the courts – perhaps later this year – that we will get an indication of how the courts are likely to approach such matters.

Clearly, some issues may appear easier to navigate through than others. I think it would take a brave solicitor bringing a claim ostensibly for lack of provision of PPE or even a safe workspace for, say, bus drivers, supermarket staff and other key workers.

A claim might stand a better chance for employees ‘forced’ to come into an office where social distancing wasn’t possible or not even attempted. Examples of this could include construction workers.

One final area of difficulty will be cases based on Hospital Acquired Covid-19 (similar to the MRSA claims). Other case types might well be easier factually, including clinical negligence cases for –

  • failure to diagnose or failure to treat effectively, and
  • for non-Covid patients (Cancer/Heart) who have had treatment cancelled/delayed as a result of dealing with Covid-19.

In these situations we will need to look at whether the delay was ‘reasonable’ in the circumstances; the ‘circumstances’ being that we were in a lockdown/partial lockdown etc.

Of course there may be sympathy for the NHS which may, in effect, mean a slightly higher bar set for what is considered ‘reasonably competent’, one that will be interpreted by the courts through the lens of a pandemic.

Breach of duty may therefore need to be more obvious before a case is taken on. There will also be causation risks around how effective a solicitor could say earlier treatment would have been.

Another factor is that, unless a patient passes away, there are currently few reports on the long-term effects of Covid-19. This means, save for fatal cases, damages awarded in many of them may well be modest. Assuming say a 3-6 month recovery period then, unless you have a particularly high earner, these claim values are likely to be under £25k – a further reason to be even more cautious.

In conclusion, none of this is easy. I would urge any solicitor/fee earner who either uses Temple’s cover or is currently considering their ATE insurance options to speak to us first – before placing any such cases on cover. Let’s approach this together in order to give our clients the very best chance of obtaining access to justice.

To find out more about our stance on Covid-19 personal injury and clinical negligence claims to please call me on 01483 514804 or email matthew.best@temple-legal.co.uk

Matthew Best

Senior Underwriting Manager
Read articles by Matthew Best

Matthew Best

Matt has an insurance background and joined Temple in July 2011 having worked for 4 years in a leading insurance company where he was dealing with personal injury work.

Matt’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 beneficial and appropriate use of ATE insurance.

He has started studying for this CII exams which he will sit in the near future, which he will then use to develop himself, further into the company in order to provide Temple’s customers with the excellent service they expect.

 

Read articles by Matthew Best