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Recently, there has been an increased use of phone or video consultations (particularly during the coronavirus pandemic) and this has meant that some people are not being physically examined in person in order to get the care that they need.
If a healthcare professional does not examine you properly, or at all, and you go on to suffer harm as a result then you may be able to claim medical negligence compensation.

What you need to know

If a doctor fails to examine you and you suffer harm, the fact that your doctor did not examine you is unlikely, on its own, to be enough to secure a medical negligence compensation award. You would almost certainly need to prove that the failure to conduct a physical examination caused a delay in diagnosis (see below) and that the subsequent harm you suffered could and should have been avoided if you had received a physical examination which resulted in an early diagnosis.

Seeking medical negligence compensation can be particularly complex. To prove that the injury or illness you suffered was caused by a ‘failure to examine’ a court would need to be certain that no other practitioner with the same information and the same level of expertise would have provided the same or similar treatment, and that this is the view of a body of suitably qualified and experienced practitioners.

For example, if you rang your GP surgery to seek advice from a doctor because you had a raised temperature, you might be advised to take paracetamol to bring the fever down. However, if all your symptoms were not checked thoroughly and you were later diagnosed in hospital as suffering from sepsis with severe complications, your suffering may have been prevented by a physical examination at the first point of contact.

However, to make a successful claim in the above example, you would need to prove that the information that the doctor was given at the first point of contact should have been enough to require a physical examination and that an earlier diagnosis would have prevented your injuries.

Failure to examine – the connection to delayed diagnosis

If a doctor’s failure to examine a patient leads to a delayed diagnosis which in turn causes harm to the patient that would not otherwise have occurred, the court may find that the initial missed physical examination was an act of negligence. In other words, if the early examination, diagnosis and treatment of the condition would have prevented the harm, there may be grounds for a medical negligence claim.

The coronavirus pandemic and claims for ‘failure to examine’

There has been much in the media about a rise in terminal cancer cases (and other diseases) caused by the coronavirus pandemic. Anecdotally, suggestions have been made that patients were reluctant or unable to present their symptoms to a doctor and this has caused a rise in harm. Commentators have suggested that patients may have been:

• reluctant to “waste a doctor’s time” during the NHS’s state of emergency
• reluctant to attend an in-person appointment at a GP surgery or hospital clinic
• unable to use the technology required for remote video consultations
• unable to fully articulate the problem/symptoms via a phone or video consultation.

There were also a number of limitations involved in remote consulting, not least the reliability of internet video meeting platforms and internet bandwidth limitations in general. Both of which may have added an extra element of difficulty to the GP’s job. And some commentators have suggested that as the country moved from a predominantly in-person appointment system to remote consultations, that the field of telemedicine, which is a specialism in its own right, was one that many GPs would not have considered themselves expert in.

All the above means that where a patient has been harmed potentially as a result of a failure to examine during the coronavirus pandemic, the claim will be extremely complex, and we have yet to see how the courts will see the role of the pandemic in medical negligence claims for failure to examine and delayed diagnosis.