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In the early days of the pandemic, good will towards our hard-working NHS was tangible, we ‘clapped for carers’ every Thursday night at 8pm, posted colourful messages of support in our windows and gave discounts to those on the frontline, fighting a disease that none of us could predict.  But eighteen months since the beginning of lockdown, are we starting to see the good will directed at the NHS wane?  Our data on clinical negligence claims suggests so.

Working with our panel solicitors, we identified a decrease of over 50% in instructions for clinical negligence claims towards the beginning of the pandemic, this despite well publicised delays in diagnoses and treatment, and serious resource challenges in the healthcare sector. This level of instruction was maintained throughout the rest of 2020 with claims at the lowest level we have seen for some time.  We believe this initial reduction in instructions can be attributed to the general surge of good will towards an NHS under attack, and a reluctance to put further pressure on an already over-burdened service.

But the tide is starting to turn, the latest data from the British Medical Association (BMA) suggests that even a year on, the disruptive impact of Covid-19 is still impacting the NHS, citing that between April 2020 and June 2021 there were:

  • 3.66 million fewer elective procedures
  • 28.35 million fewer outpatient attendances

Furthermore, the BMA states that the number of patients waiting over a year for treatment is “enormous”, 280 times higher than the number in this position in 2019.

In line with these continued delays in medical care we’ve seen a surge in clinical negligence claims since the beginning of this year, with levels quickly returning to those we saw pre-Covid.  We don’t believe the volume to be higher, and we’ve certainly not seen an influx in claims directly related to the diagnosis and treatment of the virus itself, more likely is that following the initial surge of support for the NHS, people are now becoming frustrated and ready to make a claim.

Over the past year claimants also had to contend with backlogs in obtaining medical records and reports from the NHS as well as expert opinions from practitioners. This backlog is slowly loosening so claims that may have been considered in 2020 are now able to go forward.

Working together

The good news is that we’re seeing great levels of co-operation between claimant and defendant solicitors. In recognition of the difficulties in obtaining proper medical evidence, we are seeing parties agreeing a suspension of limitation, allowing for the extra time needed to obtain the relevant medical evidence and expert opinion.  The limitation period for issuing proceedings in a clinical negligence case is three years from the date of negligence, or discovery of negligence, but in many cases, this has now been extended by mutual consent

According to a recent NHS Resolution report, the number of cases being settled without going to litigation in the last year has also increased, from 63% in 2015/16 to 74% in 2020/21, demonstrating a willingness for claimants to seek alternative methods of resolution rather than pursuing matters through the court, e.g., virtual settlement meetings

A case for leniency

Though it’s too early to tell how Covid-related clinical negligence claims will fare when they reach court, we do expect the courts to demonstrate some leniency.  The NHS was operating under battle conditions in a time of unprecedented challenges and in line with restrictions imposed by the Government, though failures may have occurred it is possible that the courts will find in favour of the beleaguered NHS.

This has a clear impact on ‘prospects of success’ for any clinical negligence claim related to Covid delays, something our panel solicitors are working hard to address with claimants, ensuring they understand the scope of their Family Legal Protection policy and the extent of cover for clinical negligence.  The next year will be an interesting time as we see a continuation of delays and potentially claims relating to the failure to diagnose or treat ‘Long Covid’ effectively but we will be watching claims volumes closely and continuing to offer expert legal advice to all our policyholders.

Rebecca Conway, Chief Legal Officer, Arc Legal Assistance

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