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December 14th 2020

Medical Negligence

‘It’s not the time to erode patient rights, those who suffered negligent care during Covid-19 pandemic deserve redress’

‘It’s not the time to erode patient rights, those who suffered negligent care during Covid-19 pandemic deserve redress’

In her final article of the series, medical negligence solicitor Sharon Lam assesses the impact of Covid-19 on damages settlements, and the rights of patients to make clinical negligence claims for care provided during a pandemic.

In her final article of the series, medical negligence solicitor Sharon Lam assesses the impact of Covid-19 on damages settlements, and the rights of patients to make clinical negligence claims for care provided during a pandemic.

What could be the impact of Covid-19 on damages settlements for injury and medical negligence?

The Courts use the Ogden tables to assess future losses in damages cases, calculating an annual loss figure.

To give an example, if an injured claimant cannot work or is restricted in their ability to work and as a result they are losing £10,000 in earnings, or they need help with day to day tasks and employ a carer at a cost of £10,000 per year, this is known as the multiplicand. That figure is then multiplied by the number of years the loss is expected to last – known as the multiplier.

When assessing loss of earnings the claimant will sustain for the remainder their working life, the court’s approach is usually to consider the most likely future working career of the claimant had they not been injured.

Where, at the time of the accident, a claimant is in an established job where they were likely to remain but for the injury, the court usually assumes the claimant would continue to suffer the same ongoing net loss as at the date of trial or date of assessment, and to take into account any reasonable prospects of promotion or movement to a higher salary scale. Discount may also apply for risks factors such as periods of employment, redundancy, illness. The Ogden Tables usually provide the appropriate discounts for such contingencies.

The clear advantage of using the tables based upon statistical averages is that they reduce costs and provide a measure of certainty.

However, what change will we see as a result of the pandemic, given the increased rate of unemployment, the impact of the furlough and job support schemes and of course the greater uncertainty for certain industries like tourism and aviation?

Defendants may well try to argue for a substantially higher discount rate by reason of additional future contingencies under the pandemic.

My view is that in order to argue for a departure from conventional approach, defendants must give compelling reasons with very specific evidence, as such factors must not be purely speculative. It is likely that expert evidence would be required. All in all, it becomes more difficult to predict the outcome of any future loss of earnings claims at trial, which is of no assistance to either side.

If there are too many uncertainties about the future and insufficient evidence, the court could always consider Blamire award as an alternative.

Loss of earning claims are more vulnerable to attack if claimants fail to demonstrate that they would have been employed or remain in employment had it not been for the injury. If, prior to the injury, the claimants worked in the aviation or tourism sector, will it now be possible for the defendants to argue that the claimants would have been laid off as a result of Covid-19 in any event? This would have an impact upon recoverable losses.

My view is that the pandemic may have an impact, but it very much depends on individual cases.

Relevant factors would include how long would the economic downturn lasts, the sector the claimant was working within, whether there was a diminished chance of obtaining employment, whether the claimant would have been furloughed and whether there would have been a top-up of their earnings.

It is important for claimants to gather evidence now regarding details for any co-workers who found alternative work and to provide witness statements to show this. In general, a claimant should start collecting evidence of losses sooner rather than later. Careful preparation of evidence and the correct approach are both required to maximise compensation.

On the other hand, in relation to care and assistance, additional care may well be required during the pandemic to protect the claimant from contracting Covid-19. At least in the short-term many families are likely to take on the burden of rehabilitating and caring for their loved ones in place of professional staff.

In such cases there will need to be consideration as to the appropriate carer rate to be applied and, what, if any, discount to be applied to the gratuitous provision of those services. Planning and safely caring for seriously injured Claimants is going to take more time and effort, which itself is likely to result in additional cost.

There is the argument that at least in the short term, live-in care packages have the advantage over care packages involving multiple daily visits, especially to profoundly disabled claimants. Appropriate PPE may need to be provided for carers, adding to the cost of care. Also, injured claimants who are otherwise able to go shopping for groceries but who have to be “shielded” during the pandemic may need extra help from family and friends for these tasks.

Lastly, the pandemic may have an impact on life expectancy calculation, as the death rate due to Covid-19 may arise both in cases relating to those actually infected, or as a result of limited access to health services, together with the physical, psychological and social impact of social distancing and economic downturn.

Some even suggests that Claimant solicitors may well prefer to use the current edition of Ogden Table rather than waiting for the new updated version.

Should patients be able to claim damages for negligent care during the Covid-19 pandemic?

Given all considerations, I believe it is likely that regardless of whether the NHS was in a ‘battle situation’, or was forced to use inexperienced staff to treat patients during a pandemic, the right to make a clinical negligence will be upheld.

Indeed, the Government seems well prepared for a rise in coronavirus-related medical negligence claims, and this is apparent from provisions within the Coronavirus Act 2020.

This piece of legislation anticipates exactly the situation where medical professions may be exposed to clinical negligence claims. Clauses 10 to 12 of the Act include the powers to provide indemnity coverage for clinical negligence of healthcare workers and others carrying out NHS activities connected to the Covid-19 pandemic. These clauses are intended as a safety net for those services provided by retired doctors or medical students that fall outside pre-existing NHS indemnity arrangements. Clauses 28 to 29 remove the requirement that inquests must be held into coronavirus deaths.

It is my view that on policy grounds, the Government would be in a much better position to indemnify these claims rather than leave innocent patients who suffered injury through no fault of their own, without any recourse for damages.

If a patient happens to fall victim to negligence during the pandemic, they should be able to retain the right to investigate and make a claim, in the same way as in pre-Covid time. If they can prove negligence caused them harm, they are entitled to legal redress.

This is not the time to erode patient rights.

This article is the final in a series of posts by Sharon Lam. You can find previous entries below:

Part 1: Have patients been failed by the Government during Covid-19 and was it negligence? The key issues and questions to be considered by the courts 

Part 2: How should clinicians be judged for the care provided in the intense pressure of a pandemic?

Part 3: Should there be extra discretion for mistakes made by clinicians called back to hospital wards or those working beyond expertise during Covid-19 response?


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