Coronavirus: Scottish health boards preparing to fight Covid cases

Four health boards are already dealing with claims, including Lothian and Scotland’s largest, NHS Greater Glasgow and Clyde.

One bereaved family is said to have been advised by a consultant that it was in their interests to have Covid recorded on the death certificate because, “there will be claims in a year or two”. 

The Herald revealed in May last year how the virus ‘spread like a cruise ship’ after elderly patients were transferred from Glasgow’s Queen Elizabeth University Hospital to Gartnavel.

READ MORE: Decision to transfer elderly patients led to Covid-19 'spreading like a cruise ship'

A whistleblower claimed the decision led to 25 deaths and 81 cases in a matter of weeks. Infection control was revised following the rise in cases. 

Legal experts say claims involving Covid-19 will be difficult because claimants will have to prove that transmission occurred in hospital and that hospitals did not take appropriate steps to prevent the spread of the virus. However, the fact that the country was in a pandemic ‘will not be a defence’.

Claims involving care homes deaths are said to be less problematic because there is less likelihood of community transmission.

As of November 8, Scotland had seen a total of 75,173 cases of the virus and of those 1,571 patients (2.1%) tested positive 15 or more days after being admitted to hospital, which means they are likely to have contracted Covid in wards. 

A further 562 patients are defined as ‘probable’ hospital-onset cases in that they tested positive eight to 14 days after admission. NHS Greater Glasgow and Clyde recorded the highest number of definite or probable hospital-onset cases at 911. 

It was followed by Lothian (236) and Lanarkshire which recorded 206 cases. 

The Herald asked every health board in Scotland if it was dealing with any legal claims for hospital-onset cases. Of those who replied, NHS GGC, Lothian, Borders and Fife said they were dealing with a “small number” of cases while Lanarkshire, Highland and Grampian said they had not received any.

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“The idea of medical negligence is always a difficult one because you’ve to prove a causal link between the loss, the injury, the death and the actions of the hospital and the specific professional within the hospital," said Dr Nick McKerrell, a senior law lecturer at Glasgow Caledonian University.

“Was it the hospital’s fault that they got Covid? That would have to be the basis of the claim. It will be more difficult to establish in a pandemic because you can catch Covid anywhere. 

“It wouldn’t be a defence to an action to say, well it was a pandemic. 

“The defence has to be, we did this and this to minimise the likelihood of cases. 

“That’s leaving aside the more complicated cases where you are not blaming the hospital for them getting Covid but perhaps you are blaming them because they died so they didn’t handle them correctly when they had the virus.”

A Glasgow minister who said he had conducted around 300 funerals in the Springburn area of the city that had involved Covid deaths, said some families had questioned death certificates. 

READ MORE: Scots cardiologists say impact of Covid on blood pressure 'major concern' 

Reverend Brian Casey said: “I would say early on that probably up to 20 families were adamant that their deceased did not have Covid symptoms but it appeared on the death certificate as occasionally the primary but mainly the secondary cause. 

“One family who seriously questioned the decision to put Covid-19 on the death certificate despite having no symptoms were told by a consultant ‘There will be a claim in a year or two for families who lost someone to Covid. It’s better if I put this now.’ 

“I do wonder what the reason for this really is. It has been suggested that there was more money available to hospitals for decontamination etc.

A spokesman for NHS Greater Glasgow and Clyde said: “We can confirm that we have received a small number of legal claims related to hospital onset Covid. 

“The last year has been a very challenging time for the NHS, but our commitment to the care and safety of our patients has continued to be our priority at all times."

Mr McKerrell believes legal cases involving care homes may be “more straightforward”. 

Jeane Freeman has admitted that the SNP administration failed to take the “right precautions” to ensure elderly people transferred from hospital to care homes to free up beds for Covid-19 patients would be safe.

More than 1,300 elderly people were discharged from hospitals at the start of the outbreak last year, before a testing regime was in place. 

Of those, 338 patients had been diagnosed with the virus. 

“The government has admitted they messed up, so the legal claim becomes more straightforward," said Mr McKerrell.

“If someone gets Covid in a care home it may be because someone else was let into the home. It’s over-lapping with a criminal case because if someone dies in a care home there needs to be an inquiry into that.”  

He said it is unlikely there would be class actions because every case would be unique and said employees will face the same difficulties proving negligence on the part of employers but “could be on better grounds” if there is evidence that health and safety policies were sub-optimal.

“That’s easier than if you are in a hospital and there is lots of illness but in a workplace that’s a different matter. 

“That a different sort of case as you wouldn’t have to prove negligence you would just have to prove that the workplace wasn’t safe.”

Families who have lost loved ones to Covid-19 welcomed a pledge from Nicola Sturgeon to involve them in a public inquiry into Scotland’s handling of the pandemic but no date has been set. Boris Johnson has said ‘now is not the right time’.