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Can I still claim for a delayed surgery?

Covid-19 has caused a lot of disruption to both our everyday lives, as well as to hospitals. That means that a lot of treatments might have been postponed, delayed or cancelled as a result.

The general guide to NHS waiting times in England has not changed throughout the pandemic. It is still suggested that the maximum waiting time, for instance, for non-urgent referrals is 18 weeks, whereas for cancer patients the waiting time remains 2 weeks from the day the appointment is booked through the NHS e-Referral Service, or when the hospital or service receives the referral letter.

However, the reality is slightly different. Even though the NHS is aiming to continue to meet the required standards, there have been some delays recorded.

NHS referral to treatment waiting times data that has been published on 14 January 2021 suggests that there have indeed been some delays. The statistics include patients waiting to start treatment at the end of November 2020 and patients who were treated during November 2020.

The main findings show the following about treatment waiting times:

  • At the end of November 2020, the proportion of patients that were waiting within 18 weeks was 68.2%, where the NHS operational standard is 92%.
  • At the end of November 2020, half of patients were waiting less than 10 weeks, and 92 out of 100 patients were waiting less than 45 weeks (where the standard is 18 weeks).
  • At the end of November 2020, there were 4,460,712 patients waiting for the start of their treatment.
  • During November 2020, 222,810 patients were admitted to the hospital to start their treatment.
  • During November 2020, half of the patients that had been admitted started treatment within 11 weeks, and 19 out of 20 patients started treatment within 52+ weeks.
  • During November 2020, 941,542 patients started treatment that did not require any admission.
  • During November 2020, half of these patients started treatment within 6 weeks, and 19 out of 20 patients started treatment within 46 weeks.

Based on the statistics, there might be a few cases where the breach of duty could be established as a result of the delay to treat patients. It is important to note that the test for breach is that of ‘reasonableness’ and if it can be shown that the delay would be seen in other places at that time for a reasonable reason. The pandemic may well be that reason, following which the claim would not succeed. However, if the delay is unreasonable, and the condition was such that the treatment was necessary to take place in a timely fashion, breach may be established.

However, in order to be successful in bringing a clinical negligence claim, we also need to establish that there is an element of causation arising from the breach of duty, i.e. that you suffered otherwise avoidable injury as a result of that breach of duty.

A claim example

An example could be where the delay of your treatment extended the period of your pain and suffering. Another example could be where due to the delay to treat your fracture, your bones healed in a wrong position and you now require a more extensive procedure to repair this; this also could affect your long-term prognosis.

If the delay was negligent and caused you otherwise avoidable injury then you might meet the criteria for a clinical negligence claim and could potentially receive compensation for the injuries sustained.

Not all delays might result in a worse outcome and sometimes it might be reasonable to wait some extra time for your treatment. However, even where it is reasonable to postpone an operation or treatment, this decision should never be made lightly and the possible consequences need to be carefully considered by the medical expert, who has a duty of care to ensure that the patient receives any required treatment within a reasonable timeframe.

If an assessment to ensure that the treatment can be delayed, and there is no risk to do so, has not taken place then the treating doctor might be in breach of his/her duty of care.

If you believe that you have been affected by the postponement of your treatment or surgery as a result of Covid-19 pandemic, and have suffered otherwise avoidable injury and harm as a result of the disruption of your treatment, please do not hesitate to get in touch. Call us today on 0300 303 3629 for a free initial consultation from a member of our experienced clinical negligence team.