Long COVID Compensation Claims
In March 2023 it was estimated by the Office for National Statistics that 1.9 million people were still affected by Long COVID. Inevitably, this figure includes a disproportionate amount of healthcare workers who suffered exposure whilst working throughout the pandemic with patients known or considered to be, COVID positive. It has been widely accepted how much more risk health care workers face, compared to the rest of the population, given the obvious dangers they face at work.
As an industrial disease solicitor with decades of experience in this specialist area, I have been instructed by approximately 100 healthcare workers across the UK who were infected with COVID whilst providing essential healthcare services during the pandemic. Their symptoms have continued, and they are recognised as having Long COVID. As their exposure was due to negligence from their employer, they are now progressing with Long COVID compensation claims. The primary defendant in these cases is the NHS, as the employer of each of the claimants is their individual trust.
The claimants range from hospital consultants and nurses to physiotherapists and health care assistants. It seems nobody was spared; such was the failure to control the exposure to COVID (a biological hazard) in the workplace. Their injuries are significant, and many have lost their careers and their independence and continue to be impacted by Long COVID.
The NHS and Front-Line Healthcare Workers
It has become clear that our front-line NHS workers were not given the support and safety precautions that were essential to their working conditions. This is to such an extent that it was dramatised by ITV and also publicised by the BBC in an informative Panorama episode.
Not only was the NHS estate old and inappropriate, but it also lacked vital space for single-person isolation or cohorts, with inadequate ventilation, air filtration and air extraction. All of this would have increased their exposure and ultimately led to the claimants suffering from Long COVID. And then, of course, we move on to personal protective equipment, more commonly referred to as PPE.
Personal protective equipment (PPE)
Employers whose employees face biological hazards (in this case, COVID-19) are required to comply with strict regulations called COSHH. This stands for the Control of Substances Hazardous to Health.
The Health and Safety Executive (HSE) had made clear that COSHH regulations were applied when dealing with COVID. This meant that the NHS had a duty to comply with those regulations to provide adequate protection and limit the chances of exposure and resulting in long COVID. This is a hierarchical duty where they need to eliminate the risk, substitute the risk, use engineering controls, use administrative controls and, if all of those have failed or cannot be used, rely on PPE.
Unfortunately, it seems the government failed to adequately supply PPE, leading to a high number of NHS healthcare workers testing positive for COVID and leading to long-term COVID. We are all now aware that the healthcare workers were not provided with the right specifications of PPE. Healthcare workers were only provided with Fluid Resistant Surgical Masks (FRSMs) and not the necessary FFP3 masks.
The difference in the provision of the PPE is important. FRSMs are primarily designed to protect from splashes of bodily fluids. They are not designed to protect against coronavirus or the resulting Long COVID. The government had access to this knowledge in advance of the pandemic as it was confirmed in a 2013 study. In that study, FFP3 masks were recommended for use by healthcare workers until the patients they were caring for were no longer infectious. They had all the knowledge they needed. What they did not have was enough FFP3 masks.
Present day
Fast forward to 2024, and the NHS, as the defendant in these Long COVID compensation claims, is arguing that it did not know that coronavirus was potentially spread by aerosol and that FFP3 masks were needed. They are also, despite the recommendations of the HSE, denying that the COSHH regulations apply.
We have heard evidence that, early on in the pandemic, the workers were given FFP3 masks. However, the government downgraded the virus and decided that FFP3 masks were not required by all workers and, instead, only for specific workers. They sought to justify this with criteria that allowed for FFP3 masks to only be used in very restricted circumstances. This amounts to nothing short of rationing because they got their emergency planning fundamentally wrong. This undoubtedly led to an increased risk of exposure and a heightened chance of suffering from Long COVID.
The UK-COVID enquiry
The UK COVID-19 Inquiry has been set up to examine the UK’s response to and impact of the COVID-19 pandemic. We have now seen the report on module 1 of the UK-COVID-19 Inquiry on the preparedness of the UK. The video summary can be seen here.
The module 1 report has highlighted that the government was simply not prepared for the pandemic. Whilst this is only the first module of the inquiry, it is telling that the government was ill-prepared. Logic tells us that if the government was not prepared, then the individual trusts relying on the government to lead them could not have been provided with adequate guidance.
The key part of the Inquiry for us will be modules 3 and 5, which are the impact on healthcare systems and procurement, respectively. Given the outcome of module 1, it does not look like the position of the government will improve. Instead, it is very likely that further failings will be identified. It is these failings which have led to a number of these Long COVID cases.
The legal battle
Within the Long COVID compensation claim litigation, I am now seeing the arguments being made about the pandemic.
- Firstly, the NHS is trying to argue that the COSHH regulations did not apply to COVID-19. However, the regulations do apply to a virus a healthcare worker is exposed to during their work with infected patients, or working in areas where infection is prevalent.
- They are acknowledging that they did not have enough FFP3 masks. This is known as a ‘reasonable practicability’ defence and is a tacit admission that they simply were not prepared to provide the necessary PPE to the healthcare workers during the pandemic. This is despite the assertions made that there was enough PPE.
We are now pushing on to a hearing in October 2024 where we will, hopefully, have a trial date set to assess the evidence and decide whether the healthcare workers failed. Specifically, we will ask the defendant to agree that certain issues are addressed by the court. These include:
- The suitability and/or adequacy of the control measures and personal protective equipment provided to the claimants for their work, particularly the provision of surgical face masks as PPE
- The defendants’ liability for the supply of any personal protective equipment found not to be suitable or adequate
- The law and/or tests to be applied to the causation of COVID-19
- Limitation in cases where it is relevant.
Even if we succeed on these issues at trial, we still have a long fight to prove that every one of the healthcare workers caught COVID at work has led to their life-changing Long COVID diagnosis, and it is expected that the defendant will continue to fight each and every case on this point after the first trial.
If you are a healthcare worker and are suffering from Long COVID, fill out our dedicated contact form.
You can also speak with our new client coordinator by calling 01752 203500 or emailing me directly via kevin.digby@GAsolicitors.com.
You can read an article about COVID-19 claims here.
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