It goes without saying that the NHS is under immense pressure due to the COVID19 virus and in the last few weeks, we as a nation have seen the government take drastic action by confining us to our homes in a “lockdown” status. This is in an attempt to help alleviate the pressures on the NHS, prevent the daily rising death toll and further prevent the spread of COVID19.

The urgent bill passed by parliament in March 2020 contains a provision stating that any COVID19 cases will be exempt from any negligence lawsuit. But does this apply to treatment and care provided in and around COVID19?
In short, the answer is no.

Despite the pressures on the NHS at the present time, they still owe a duty of care to many patients that are unaffected by COVID19 but perhaps are affected by another medical issue. Urgent referrals and procedures are meant to continue where possible. However, with the daily COVID19 pressures, these services are likely to be affected, which can and will cause a delay in treatment. The impact of such a delay, regardless of a global pandemic, can be damning for an individual and lead to devastating consequences. It is in these circumstances that a claim could be brought against the NHS.

Is it likely medical experts will support negligence cases that have occurred during these times? It is too early to say at this stage. However, each medical expert is to provide their opinion based on the law of negligence i.e. what would a competent body of medical practitioners have done?

If you would like to discuss any element of the above, or any other clinical negligence issue, please contact our clinical negligence experts.

Clare Gooch

I was interested to read the headline on BBC News yesterday that the NHS in England faces a payout of £4.3bn for Clinical Negligence compensation claims. Putting aside the veracity of the numbers, as a practising Clinical Negligence lawyer, I wanted to reflect on the secondary angle of the story; that is, that behind every such claim, real lives have been drastically altered in each and every one of these cases.

Clients who have experienced life-changing injuries as a result of medical errors want, above and beyond everything, answers to what went wrong. However, it seems that seeking answers or clarity from Hospital Trusts, consultants, nurses and/or staff can prove to be difficult with no one wanting to take responsibility for their actions, or even at the very least, offer an apology for the events that have taken place. Compensation is an inevitable consequence of pursuing a claim BUT it is by no means the driving motivation for the majority of clients.

The tragic case of Hayden Nguyen, reported by the BBC, strongly emphasises my point: “In the face of official silence and in a bid to get answers they took legal action”.

I have seen this repeated many times in my practice and believe it to be very typical of authorities and medical institutions seeking to, at best, prevent clarity and in the worst cases obfuscate or hide. Whilst this is understandable as nobody wants to highlight or emphasise their mistakes/errors, it serves to exacerbate a difficult situation.

It is of course understandable that concerns are raised when contributions from Hospitals into the Clinical Negligence Scheme for Trusts are rapidly increasing. However, it is my strong contention that the increased level in claims would be reduced most significantly by a dramatic increase in transparency from the Hospitals when things go wrong. Such an improvement will undoubtedly reduce the number of people who seek legal redress purely to understand what went wrong in the case of their loved one!

Clare Gooch