Photograph of a gavel in front of a British flag

A New Litigation Crisis on the Horizon: Negligent Delays for Non-COVID-19 Patients

By John Tingle

As the dust begins to settle around the COVID-19 pandemic, a clearer picture is beginning to emerge of possible litigation trends against the United Kingdom’s NHS (National Health Service) for actions taken during the crisis.

Many NHS services have been reduced or suspended during the crisis. Negligent delays in treatment are a common cause of action in clinical negligence and medical malpractice cases. Legal claims could be made by patients who argue that they have suffered, and continue to suffer, because of lack of access to care and treatment due to COVID-19 NHS emergency restrictions. These claims raise tort, public law and human rights concerns, and some law firms have already been approached by patients asking for advice in this area.

A call for urgent action

Many are calling for urgent action to be taken to prevent avoidable harm and deaths among non-COVID-19 patients.

Peter Walsh, the Chief Executive of AvMA (Action against Medical Accidents) writes that while the emergency action of the NHS in suspending some services at the start of the pandemic and concentrating on COVID-19 patients was understandable, effects on non-COVID-19 patients are a growing concern:

“AvMA is increasingly concerned about the consequences for patients with other conditions which need urgent treatment or diagnostic procedures. We have already been receiving enquiries from patients or their families where the unavailability of such services appears to have resulted in avoidable harm or even death. Solicitors around the country tell us that they have also.”

Growing backlog

Walsh adds that there is a growing backlog of patients requiring diagnostic services or urgent treatment. The problem is likely most severe in relation to cancer treatment and diagnosis, but he also notes major problems with accessing neurology and cardiology services. Walsh notes that he is not aware of any Government consultation with patients’ groups at a national policy level when the decision was made to suspend some NHS services in favor of COVID-19 care. NHS patients in general have not been consulted over this COVID-19 priority setting.

Potentially deadly consequences

Some individual non-COVID-19 patients have had to face the sometimes dire, potentially deadly consequences of the prioritization of COVID-19 patients.

Denis Campbell writes in the Guardian about a patient who is at serious risk of dying after his cancer went undetected because of suspension of many NHS services. He had, according to Campbell, to wait months for a scan, which only recently occurred. Campbell quotes the patient:

“‘I’m fighting for my life because I didn’t have a scan. I should have had the scan months earlier but didn’t because normal NHS care was suspended because of the coronavirus. I started asking for one in early March but didn’t finally get one until last week,’ Sherwin Hall told the Guardian.

‘I’m angry, frustrated and disappointed. And I’m devastated that I might lose my life to cancer that could have been cured if they had done what they were supposed to do [more quickly].'”

On June 10th, 2020, BBC News reported that NHS leaders fear that the COVID-19 crisis could see the number of people waiting for treatment double to 10 million by the end of this year.

A letter to the Prime Minister, Boris Johnson and others

Walsh states that AvMA is working with clinicians, patients, solicitors, barristers, and others to raise awareness of this access issue and to demand urgent Government action. A letter by a coalition of leading patient safety professionals, including Walsh, has been sent to the British Prime Minister and First Ministers about this crisis issue.

The signatories to the letter convey a stark message:

“The backlog of such cases is now significant and worsening. We implore the central and developed Governments of the UK to take urgent strategic action, including in co-ordination and co-operation with each other, to prevent this becoming a second and perhaps even more serious health catastrophe arising from the pandemic in the UK.”

Conclusion

The Government and our heroic NHS has worked tirelessly to get a grip on the COVID-19 crisis, and we are getting back, thanks to their efforts, to a “new normal.” As the COVID-19 crisis lessens in severity, these excellent efforts now need to focus on dealing with the worsening backlog of non-COVID patients who require urgent treatment or diagnostic procedures.

John Tingle

John Tingle

John Tingle is a regular contributor to the Bill of Health blog. I am a Lecturer in Law, Birmingham Law School, University of Birmingham, UK; and a Visiting Professor of Law, Loyola University Chicago, School of Law. I was a Visiting Scholar at Harvard Law School in November 2018 and formerly Associate Professor at Nottingham Law School, Nottingham Trent University in the UK. I have a fortnightly magazine column in the British Journal of Nursing where I focus on patient safety and the legal aspects of nursing and medicine. I have published over 500 articles and a number of leading texts in patient safety and nursing law. My current research interests are in global patient safety, policy and practice, particularly in African health care systems. My most recent publication is: "Global Patient-Safety Law Policy and Practice," edited by John Tingle, Clayton O'Neill, and Morgan Shimwell, Routledge 2018.

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