By Jack Milnthorpe, Trainee Solicitor
It’s estimated that 1 in 2 people will experience cancer during their life and these are some of the highest affliction statistics of any disease worldwide. The effect of the Covid-19 pandemic, and the consequential lockdowns, have affected almost every part of life – and unfortunately cancer diagnosis is no different in this regard.
Since the first UK lockdown was announced, access to cancer screenings have been suspended and in essence, only the most urgent and symptomatic cases have been prioritised for treatment and further diagnosis. The impact of this cannot be overstated; research from the Lancet earlier this year estimated that, of the four most common cancer types alone, there could be up to 3,621 avoidable deaths in the next 5 years due to lack of cancer diagnosis.
This has the potential to have a large impact on medical negligence claims relating to cancer in the aftermath of the pandemic and any future lockdowns which may occur due to the physical cost these delays could be having.
On the most basic level, medical negligence claims must, at law, satisfy all three stages of a three limb test comprised of the following;
1. That the patient was owed a duty of care by the medical professional;
2. That the duty of care owed to the patient in 1 above was breached; and
3. The breach of the duty of care caused harm which was reasonably foreseeable.
Point one of this test is unlikely to be impacted by Covid-19 as medical professionals generally owe a duty of care to their patients as one would expect; and a pandemic is unlikely to reduce this duty of care.
For limbs 2 and 3, Covid-19 is presenting risks for medical negligence to emerge in relation to Cancer diagnosis. Hundreds of thousands of routine cancer screenings have been missed already this year and, according to Cancer Research UK, urgent Cancer referrals have dropped to 25% of their pre-pandemic levels.
Additionally, more and more triages with medical professionals are taking place over video chat due to social distancing – whether this is sufficient for a medical professional to diagnose cancer still remains contested. This means that as fewer people are seen by medical professionals in person – and the majority of these are for those already obviously presenting with symptoms – there could be thousands of individuals with cancer not being correctly diagnosed and having treatment delayed – worsening their condition.
If these measures are found by the court to satisfy limbs 2 and 3 of the medical negligence test then there could be real grounds to prosecute medical professionals who through negligently delaying cancer screening have caused people already suffering under lockdown further harm.
On balance, it must be considered that some medical Defendants are already using these same points as a defence; namely that lockdown resulted in unprecedented circumstances and the measures were put in place due to social distancing. However, given that multiple professional bodies including the Central Medical Counsel and the Royal Counsel of Physicians have stated that medical professionals should continue to work within their areas of competency it is unknown how much water the defence of Covid-19 will hold – especially as the longer Covid-19 endures the less unprecedented the circumstances are.
As a result of this, the possibility for medical negligence as a result of delayed cancer screenings becomes ever-more real and harmful as time goes on. This could see a real possibility of medical negligence claims on these grounds also increasing as time goes on.
Given the serious effects of medical negligence and the technical nature of medical negligence litigation, it is strongly advised that you obtain specialist legal advice in relation to all kinds of negligence; include Covid-19 related negligence relating to cancer. Every set of circumstances is different and must be approached as such.
If you are worried that you have experienced Covid-19 related medical negligence, please contact the Personal Injury and Medical Negligence Department at The Wilkes Partnership LLP on 0121 233 4333.