What are my rights if my general surgery or treatment has been delayed during the pandemic?

Hannah Luscombe is a Senior Solicitor and Kirsty Parkes is a Senior Litigation Executive at Patient Claim Line, a leading UK medical negligence law firm. Following new survey data from Patient Claim Line revealing that 50% of Brits have had their medical treatment delayed by the NHS since the pandemic;Senior Litigation Executive, Kirsty Parkes and Senior Solicitor, Hannah Luscombe at Patient Claim Line, discuss the long-term impact on Covid-19 when it comes to delays to routine NHS treatment.

What kind of impact has the pandemic had on general surgery and treatments?

“As a consequence of the pandemic, the NHS has been under significant pressure to reduce the risk of transmission of the disease within the hospital environment, and to protect those patients who are categorised as vulnerable, in particular” comments Senior Solicitor Hannah Luscombe.

“Current NHS advice suggests that people avoid attending their GP, dentist or hospital and attend in person only when it is absolutely necessary, often resulting in a sense of uncertainty as to whether an injury or condition is “serious” enough to warrant the risk of seeking in-person medical advice.  NHS figures suggest that in November 2020, the total number of attendances at Accident and Emergency in England was down by 30.7% compared to the same month last year, which is thought to be as a direct consequence of the Covid-19 response.”

“Another solution to reducing the amount of people in hospital at a time has seemingly been to postpone all “non-urgent” appointments and procedures. Another benefit to cancelling a surgical appointment is due to the fact that undertaking major surgery often requires postoperative ICU admission and involvement of a large number of theatre and ward staff. This in turn reduces the availability of NHS staff who could otherwise be managing those patients who are being treated in hospital for Covid-19 which is, at present, much more of a priority to the NHS than tackling the ever-increasing backlog of non-urgent surgeries.”

“Figures show that the number of patients in England waiting over a year for routine hospital care is now 100 times higher than before the pandemic, and it has been suggested that it could take two to three years for the waiting list to be tackled. Professor Neil Mortensen, President of the Royal College of Surgeons has warned, “…Thousands of patients who were already waiting for surgery when COVID struck, have paid a heavy price.  It is tragic to see so many lives put on hold…

What are the consequences of patients having their treatment delayed?

“More and more patients are being added to waiting lists daily for “non-urgent” surgeries, for example hip replacements; maxillofacial procedures; or non-urgent vascular or urological procedures. In the meantime, these patients are often experiencing severe levels of pain and discomfort and are unable to carry on with their daily lives as a result,” explains Kirsty Parkes. “In many of these cases it is often the case that the sooner treatment is received, the better the chances are for long-term recovery.

What are my rights to get the type of medical treatment I need from the NHS?

“Firstly, you are entitled to treatment from a GP at the surgery where you are registered,” explains Hannah. “You are only able to receive NHS hospital treatment when you are referred by your GP (unless you need urgent medical attention in an emergency).”

“When you are referred for a hospital appointment, you can choose to go to any NHS hospital that provides that service. You have the right to choose a team or consultant, provided that your referring doctor agrees that your choice is appropriate. You can choose a team based at any hospital.”

“If you need urgent medical attention or your condition is life threatening, you can go directly to A&E without needing a referral from your GP.”

“You also have the right to use hospital services within the maximum waiting times. Waiting times may vary between hospitals and therefore if your condition is not urgent, you may wish to select a hospital with a shorter waiting list. You can compare waiting lists on the NHS website here. Whilst the impact of the pandemic has been felt nationally, some parts of the country have been affected more than others, particularly if there have been higher levels of transmission in those areas. Delays may therefore vary, depending on which part of the country you are in.”

“If this is not possible, your local CCG must try to offer you a range of suitable alternative treatment providers if you ask it to do so.”

“You are also entitled to get a second opinion after seeing a consultant. You will need to request this from the consultant or your GP.”

“Finally, if you remain dissatisfied with the treatment you are receiving, you may consider it necessary to make a complaint using the NHS complaints procedure.”

If your condition is urgent, you can call 111 or, in a medical emergency, call 999 for assistance.


Has there been a difference in medical negligence claim types and patient attitudes since the pandemic started?

“Patients have been very understanding of the demands on the NHS as a result of the pandemic and that there has been a need to prioritise care for those in urgent need only,” explains Kirsty.

“However, we expect that we will see greater numbers of enquiries from the start of next year as the delays continue and patients’ conditions worsen or become increasingly less tolerable. In many instances, patients may have accepted delays of a few months whilst the NHS got on top of the pandemic, however delays extending to many months and even years, become increasingly difficult to cope with.”

Can I claim compensation if my general surgery or treatment has been delayed?

“Firstly, compensation is only payable if a patient can establish that their treatment has been delayed as a result of negligence,” explains Hannah. “Compensation in medical negligence claims is made up of general damages for a patient’s pain, suffering and loss of amenity as a result of the negligence, and special damages for their resultant financial losses such as loss of earnings, treatment costs, care and assistance and travel expenses.”

“Every case is different and expert medical evidence is generally required to accurately value a claim. Depending on the facts of each case, a patient could be entitled to compensation for the additional months of pain and suffering they have experienced. If their injury has worsened as a result of the delay and the surgery required is more complex than they would otherwise have required, potentially with a worse prognosis and associated time off work, they would be entitled to compensation for their additional injuries and resultant financial losses.”

“For example, if a patient’s surgery has been delayed as a result of negligence for 3 months but this has not impacted their overall condition or outcome, then they may be entitled to between £1,290 and £2,300 general damages for their avoidable pain and suffering according to the Judicial College Guidelines. If a patient has suffered a wrist fracture for example, and it can be established that prompt surgery would have resulted in an almost complete recovery whereas a negligent delay in surgery has caused them to suffer a worse injury such that they will suffer some permanent disability, persisting pain and stiffness, they could be entitled to £11,820 to £22,990 under the Judicial College Guidelines together with compensation for any associated time off work, disadvantage on the open labour market if their ability to work is affected, rehabilitation costs and future medical expenses.”

As you can see, compensation in delayed surgery cases can vary significantly from a couple of thousand pounds to potentially tens of thousands of pounds depending on the nature of the injury suffered and the impact that such an injury has had on a patient’s life and ability to work. Expert medical evidence is crucial in such cases to identifying the impact of the delay on the patient’s condition.

If you or someone you love has experienced general surgery or treatment delays that have caused avoidable pain or suffering, then Patient Claim Line can help. Speak to a legal advisor for free on 0330 107 5324

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