In an October 2020 survey of 420 GPs, 45% of respondents knew of a patient that had come to harm because of delays to routine care caused by the pandemic. 93% remained worried that harm could come to patients as a result of delays. (https://www.gponline.com/half-gps-say-patients-harmed-delays-care-during-covid-19-pandemic/article/1697972)
An example given was a patient who was diagnosed with cancer following a CT scan in February 2020, who was not offered any follow-up imaging until July. That patient has now been told that the cancer has metastasised and is no longer treatable. There are also patients whose delayed operations have left them in prolonged significant pain.
Only in the coming months and years will we start to see the potential devastating effects of COVID-19 on those who did not even contract the disease, but were indirectly affected, nonetheless. We consider the question of whether those harmed by delays to treatment will be able to make a clinical negligence claim.
Duty of Care
The first step to establishing a clinical negligence claim in relation to delays to treatment is likely to be the easiest one. A medical practitioner owes a duty to their patient to take reasonable care to investigate symptoms and complaints properly, to make a proper differential diagnosis. They should then initiate action in order to take all reasonable steps to procure the health of the patient, and provide a reasonable course of treatment. Once the practitioner has assumed responsibility for the patient’s care, they can then become liable for a negligent omission to act.
One of the first questions that the Claimant will have to ask is ‘who is the right Defendant?’. It is likely that health boards were following national health authority guidelines rather than making their own decisions about prioritisation.
There is then the question of whether the duty is breached.
The breach will always be considered against the appropriate standard of care and will be judged within the context of their clinical field and colleagues’ views, as per the familiar test of Bolam v Friern Hospital Management Committee. The clinician essentially has to show their treatment was within the range of reasonable approaches of a respectable body of doctors. Whether or not the approach is reasonable is an objective test.
It would be quite straightforward for a health board to show that the decisions they were taking, regarding which care to prioritise in the worldwide health crisis, was a reasonable approach – but would that be the correct question? In isolation, no medical practitioner could say it is a reasonable approach, for example, to cancel all scheduled biopsies in urgent cancer patients so long that the conditions become inoperable. However, they would likely have more success showing that it was reasonable to prioritise Coronavirus patients during an unforeseen pandemic which stretched the NHS beyond breaking point. It may well be that the courts have to consider which question they should be asking and how the test will be adjusted to account for the potential influx of claims.
There is an obvious difficulty when bringing a claim for delayed treatment and establishing causation. Delayed treatment cases will involve multiple causes as, logically, one of the causes of the injury must be the patient’s pre-existing medical condition that they were awaiting treatment for.
In circumstances where there are multiple causes, the strict application of the standard “but for” test could lead to inherent difficulties for a Claimant. Therefore, the questions to be considered by the court will be:
Is there evidence to indicate that the injury would not have occurred, but for the defendant’s negligent delay in treatment?
If not, can it be shown that the defendant’s negligence was a material contributory cause of the injury?
To succeed it must be shown, on the balance of probabilities, that a delay in treatment materially contributed to the particular injury.
COVID-19 has put life, as we know it, on hold. Delays in medical treatment is just one area that has been affected by COVID-19 and will no doubt continue to be affected. However, a claim in clinical negligence may not be a straightforward avenue for a Claimant. What must be considered is that there will be difficulties in demonstrating that the duty of care had been breached in addition to the difficulties when proving causation.