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Ellen Robertson

Barrister, Temple Garden Chambers

Negligence under lockdown

Negligence under lockdown


Selecting an expert in covid-19 related medical negligence claims could be a challenge, as Ellen Robertson explains

A former NHS official has announced plans to sue the health service after he was told he would need to wait longer for cancer treatment due to the covid-19 crisis. 

As patients have seen delays and disruption to life saving treatment, solicitors should be prepared for clinical negligence claims arising out of those delays. We may also see more claims arising out of errors made in diagnoses and treatment during the covid-19 lockdown. 

The retired NHS trust executive, Rob McMahon, was told that he had an elevated PSA (prostate specific antigen) blood test result at a routine health check in early March this year. 

McMahon was sent for further tests before undergoing an MRI scan on 19 March. The scan indicated that it was likely, or highly likely, that he had prostate cancer. Four days later, the UK went into lockdown to halt the spread of covid-19.

McMahon was due to see a consultant urologist on 27 March but that appointment was changed to a telephone consultation and then delayed for two weeks. When the appointment did take place, he was told that his wait for a biopsy would be two to three months. He claims that he was told the tumour would be slow growing and that he should not worry. 

Nevertheless, he was concerned at the delay and opted for a private biopsy, which confirmed the tumour was aggressive. He then underwent a radical prostatectomy privately, at a cost of £20,000. The relevant NHS trust, Worcester Acute Hospitals NHS Trust, claims that it followed NHS and cancer-specific guidance on which tests and procedures were to continue in hospitals during the lockdown.

Deterred from claiming

Many other patients with cancer and other serious illnesses will have faced disruption to vital treatment due to covid-19. Some are beginning to speak out in the media regarding NHS delays in relation to both diagnoses and in treatment. 

Less than five months after the start of lockdown, it is too early to predict how many of these delays will result in claims being pursued. Some have speculated that the strength of support and gratitude for the NHS may deter some from pursuing a claim, but claimants who have suffered serious repercussions from delays to their health and financial wellbeing may not be deterred.

Another factor that may reduce claims is covid-19 itself. The unique circumstances that NHS trusts and practitioners faced during the lockdown may militate against more claims being pursued. In many cases, proving that delays or errors in treatment amounted to negligence given the importance of the relevant context (see below) will be an uphill battle for claimants.

Some have called for a public debate over NHS compensation claims, with the Medical Defence Union arguing for doctors to be granted immunity from negligence claims for treatment during the crisis. 

Several US states, including New York, New Jersey, Illinois and Michigan, have passed immunity provisions. The UK has taken a different path – the Coronavirus Act 2020 provides broad indemnity protection rather than immunity from suit for healthcare workers. With that broad indemnity protection in place, covering those who have returned to practice and those who are redeployed, the debate on public immunity appears to have quietened in the UK.

NICE guidelines

Will clinical negligence claims arising out of delayed treatment during the lockdown succeed? As with all such claims, a vital question will be the context surrounding the delay. Covid-19 will not be an acceptable catch-all explanation for delays, but the standard of care expected by the courts will reflect the need for prioritisation during the lockdown. 

Sadly, the lockdown will have made certain delays unavoidable, even if those same delays would have been unacceptable prior to the lockdown. The lockdown is therefore likely to affect the lengths of delays for diagnostic scans and for treatment that the courts will tolerate as an acceptable standard of care.

When assessing the strengths of clinical negligence claims arising out of delay, practitioners will need to consider the National Institute for Health and Care Excellence (NICE) guidelines on providing services during the pandemic. We can expect the courts to look to whether procedures were adequately implemented and followed in order to prioritise those patients most in need. 

The courts will place some importance upon whether NICE guidelines were properly followed, and if not, whether there was a good reason for not doing so. Covid-19 rapid guidelines were issued on 20 March in relation to dialysis, systemic anti-cancer treatments and critical care in adults. Since then, NICE has continued to issue further guidelines and to update those already in place. Pinpointing the guidance in place at the relevant time will be vital – almost all of the guidelines have been updated as the lockdown situation developed.

Standard of care

It is not just delays arising out of the lockdown that may give rise to an increase in claims. Over the last few months, thousands of retired medical professionals have returned to the NHS frontline, joined by second and final year medical, nursing and midwifery students. 

Meanwhile, large numbers of medical professionals have been redeployed to different clinical roles. Podiatrists, speech and language therapists, occupational therapists, audiologists, physiotherapists and others have found themselves redeployed to unfamiliar tasks such as monitoring oxygen supply for intubated and non-intubated patients. 

Over the last five months, thousands of medical decisions have been made by those who are inexperienced in practice or unfamiliar to the role. Some of those decisions will have been made in error. We may therefore see an increase in claims arising out of those errors made by individuals who lacked experience or familiarity in their roles during the lockdown.

As always the courts will consider, when assessing whether treatment was negligent, whether the medical professional fell below the standard of skill and care appropriate to the post being fulfilled rather than the personal experience of that professional. If a medical student has been placed in a position of responsibility beyond their capabilities, and as a result makes an error that falls below the standard one would expect from that position, the NHS trust will be liable.

Clinical negligence practitioners will need to give careful consideration to their selection of experts in cases arising out of delays or errors made during the covid-19 lockdown. Retired medical practitioners who did not return may be in a difficult position to assist the court on claims arising out of a unique set of circumstances in the NHS which did not arise during their practising careers. 

They are therefore unlikely to be able to answer questions about the sorts of prioritisation decisions that had to be made at that time, or about the time and resources available to medical professionals for each patient. This means it will be important to clarify, with a proposed expert who has retired from practice, whether they returned to practice and whether that return was to their area of expertise. 

A redeployed expert may be of little more assistance on the effect of covid-19 on practice in their area than an expert who did not return.  

Ellen Robertson is a barrister at Temple Garden Chambers