The Lincolnite reported on 1 September 2020 that United Lincolnshire Hospitals Trust has reduced its backlog of cancer patients after the coronavirus lockdown has been eased.  This is good news, but at the same time, the not so good news is that the number people waiting more than 18 weeks on a referral pathway have tripled since June.

This is expected to start reducing over the next few months due to the Trust’s recovery plan.  For those caught up in the backlog however, the waiting must be an extremely anxious time.

We receive many enquiries from people who have had their treatment delayed and ask whether this could form the basis of a claim for compensation. This is not just cancer treatment, though we do seem to see rather more of those.  We strongly suspect that we may see an increase in these enquiries due to delays caused by the pandemic restrictions.

We thought therefore that it might be worth briefly examining when such claims can be made.  Please be aware however that there is much more to it than can be detailed in a blog and if you are concerned, we are happy to discuss matter with you so we can give you individual legal advice.

The law in relation to the delivery of medical services has not changed because of Covid. The same legal principals apply.

Basically, what we are always looking at with medical negligence claims is whether there has been a breach of the “duty of care” on the part of the treatment provider, usually the NHS, though it can be private care.

For there to be a breach of duty and negligence, the treatment provider has to have acted in a way no responsible body of doctors would have done. There is no specific dividing line for this; it is different in each case.

However, often more important are the consequences of that breach/negligence. This is called “causation” in legal terms.  We have to look at what the negligence has caused.  For compensation to be payable, an injury has to be caused, or an existing injury or condition made worse as a result of the negligence.  If there is no injury or worsening, or the injury is too minimal, then there will be no causation and therefore compensation will not be appropriate or awarded.

This can come as a surprise to non-lawyers. You would think that merely being negligent would be sufficient to be compensated. But it isn’t.  There has to be something to be compensated for – an injury or a more detrimental outcome from lack of treatment.

The pandemic restrictions on treatment will provide lawyers with a challenge in terms of claims.

The reason is this.

For some people, delay in their treatment can have very serious consequences in that they have to have more extensive and unpleasant treatment, or even surgery that could have been avoided, or sadly, they will have an earlier death than they might have done but for timely treatment.  Expert evidence can usually tell us whether this is the case.  If the claim is successful, then compensation reflects the difference between what the outcome should have been and what it actually was.

But, what if your chances of recovery have been affected?  Can you make a claim for that? What if, say, you had an 80% chance of recovery, but as a result of pandemic delay, you now only have say, a 65% chance?  Look at it another way – say your chances of recovery were only 35% anyway, but now they have reduced even further to say, 20%?

We need to consider a case called Gregg-v-Scott, heard in the House of Lords as it then was in 2005.  It is a complex case, but at its most basic, what it says is that claims cannot be made for “loss of chance” – the loss of chance of a slightly better outcome in terms of recovery.

The key point here is that if you went from an 80% chance to a 65% chance, then the likelihood is that you will still go on to make a good recovery.  This is because you still have a better than 50% prospect of recovery, which you did in the first place.

If on the other hand, your chance of recovery went down from 35% to 20%, then this is unfortunately the same situation in reverse. The chance of recovery was always below 50% and this is what is considered in law.  An injury has to be more likely than not – over 50% – to have been caused by negligence for compensation to be appropriate.

But what did not seem to be covered in Gregg -v-Scott was what would happen if someone’s chance of recovery went from above 50% (more likely to recover than not), to below 50%? (unlikely to recover)? Say the prospects went down from 60% down to 40%?

That is the legal dilemma.

If you think that delays in treatment may have seriously affected your long-term prospects of recovery, do give us a call to discuss.

The Trust may have a perfectly valid defence in that treatment could not have been legally provided due to restrictions or the risk to you of treating was too great. We completely understand this and of course are not unsympathetic to the NHS in this, as they too had and have no choice but to obey the law. It will be important for us as solicitors to scrutinise potential claims very carefully, both from the point of view of raising a client’s expectations without foundation and not inappropriately engaging NHS resources.

Contact Brenda Gilligan – call 01522 561020 or email wecanhelp@ringroselaw.co.uk

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