When does a Delay make a Claim?

Delays are not uncommon in our overstretched NHS but not all delays will support a successful legal claim.

There are many different types of delay a patient can experience when accessing healthcare. Due to the many stages in referral and treatment, a single patient may indeed experience more than one delay.

The circumstances in each type of delay are important in identifying if the delay could support a legal claim.

In any case of a potential claim for delay, it must be demonstrated that:

1. The delay was so long to be below the reasonable standard to be expected;
2. The delay resulted in additional and demonstrable injury or illness.

Below are some common delay scenarios.

Referral/First Appointment Delays

The first delay a patient may experience is in waiting for an appointment. Referrals for treatment are most commonly sent by GPs. Delays can occur at the time of referral due sometimes to administrative errors by the sender or recipient, a problem commonly seen in the multi-layered NHS referral system.

Whether any delay leads to a legal claim very much depends on two things. Firstly, the length of the delay and how far outside the acceptable waiting time this falls. Secondly, the patient (the Claimant) would need to demonstrate that they have suffered significant additional illness or injury as a result of that delay.

Diagnostic Delays/Incorrect Diagnosis

Having the right diagnosis is crucial to receiving the correct treatment. Sometimes delays occur because the healthcare practitioner fails to spot the correct condition at first or fails to make a diagnosis at all. This results in a delay in treatment.

In the same way as above, to support a legal claim, it is important to demonstrate below standard care in failing to make that diagnosis earlier and resultant additional illness or injury occurring as a result.

Waiting List Delays

A waiting list will always involve some waiting, hence the title. Issues, however, can arise if the delay is far outside accepted targets or if the urgency of the condition has been incorrectly assessed, with treatment in fact indicated without a wait. Again, whether such delay leads to a legal claim will depend on the length of that day and also the need to link that unacceptable delay to additional illness or injury.

Test Result Delays

Once subjected to tests or investigations, receiving the results is an important part of the process. For most of us, that means waiting patiently for the results to come through.

Delays can occur in communicating such results either from the laboratory or onwards to the patient. If such a delay is determined in the circumstances to be unacceptably excessive, for example a test proving positive for cancer, and such delay results in additional illness or injury, there may be a legal claim.

Conclusion

Accessing the right healthcare at the right time is critical for good health going forward. Failures in process or in clinical management can lead to unacceptable delays which in turn can result in illness or injury.

If you are concerned that your treatment was wrongly delayed, get in touch with us for advice. Contact Peter Livingstone on 01935 846131 or victora.knight@battens.co.uk