Case: Failure to diagnose meningococcal septicaemia resulting in severe complications

Abstract

Background

On 26 July 1996, the Claimant, then 7 months old, was taken to his GP surgery as he was displaying symptoms of fever, vomiting, crying and generally being unwell. The Claimant was examined by his GP, and his mother was advised to take measures to reduce his temperature and return to the surgery if his condition deteriorated.

The Claimant's condition became gradually worse and his mother took him to a medical centre later that evening. The Defendant GP performed an examination and diagnosed the Claimant as suffering from a viral infection, which would resolve of its own accord.

The Defendant GP did not provide the Claimant's mother with review criteria to assess on what grounds to return to the centre. Instead, the Defendant GP advised that the Claimant was well enough to accompany the family on their holiday the following day.

On 27 July 1996, the Claimant was rushed to A&E at Penrith Hospital when he began to involuntarily contort, vomit and appear to lose consciousness. On arrival, medical staff confirmed that he was suffering from meningitis and he was immediately transferred by ambulance to the Cumberland Infirmary in Carlisle.

The Claimant was diagnosed as suffering from meningococcal septicaemia.

On the evening of 27 July 1996, the Claimant was transferred to Newcastle General Hospital, where he received intensive treatment over the following weeks before being discharged on the 28 September 1996.

Claimant's case

It was the Claimant's case that the Defendant GP was in breach of his duty of care towards him by providing substandard treatment in that he:

failed to take any or sufficient steps to investigate the reasons for the Claimant's condition;

failed to take a sufficient or accurate history from the Claimant's mother;

wrongly assessed (and described the Claimant in the note) as ‘out of sorts’ when in fact he was much more seriously ill than that;

failed to record and take heed of the fact that the Claimant had been vomiting all day;

failed to measure and record the Claimant's temperature;

failed to take any or adequate account of the history given by the Claimant's mother;

failed to ascertain and/or take any or sufficient account of the fact that the Claimant was seriously ill and he required admission to hospital for assessment by a paediatrician;

failed to arrange for the Claimant to be admitted to hospital for assessment, investigation and treatment.

As a result of these breaches, it was alleged by the Claimant's solicitors that the Claimant suffered severe complications arising from the meningococcal septicaemia, which would have been avoided had a diagnosis been made sooner. In particular, the Claimant would not have suffered severe neurological brain injury, mild right hemiparesis, an ataxic gait, intractable epilepsy and severe learning difficulties.

Progress of the case

A letter of claim was sent to the Defendant on 5 December 2003. The Defendant's insurer in this case was the Medical Defence Union (MDU) and they issued a letter of response on 10 August 2004, in which breach of duty was denied.

Particulars of Claim were served on the Defendant on 11 October 2005. The Defendant issued a Defence to the claim on 23 December 2005, in which he strongly contested the claim and continued to do so throughout the conduct of the matter. It was the Defendant GP's case that based on the Claimant's presentation and the information provided to him by the Claimant's mother, it was reasonable to diagnose a virus and he was not in breach of his duty of care in respect of his failure to refer the Claimant to hospital. The Defendant GP's contemporaneous note recorded that the Claimant was ‘out of sorts’ that day. It was argued that the description captured by this phrase was wholly inconsistent with the account provided by the Claimant's mother concerning his condition and deterioration during the course of 26 July 1996.

Each party instructed a GP expert to produce a medical report on breach of duty, as well as a consultant paediatrician in Infectious Medicine and a consultant paediatrician on causation. A five-day trial on liability took place at Newcastle upon Tyne District Registry in April 2008. Following the trial, judgment was handed down at the High Court in London in August 2008. After considering all of the evidence and with the benefit of submissions from Counsel on both side, Mrs Justice Cox found in favour of the Claimant on both issues of breach of duty and causation. The Defendant's solicitor made submissions to appeal this decision but leave to appeal was refused.

In respect of quantum, both parties obtained various quantum reports and held a settlement meeting on the 30 September 2009, at which a settlement figure was agreed. Mrs Justice Cox DBE approved this figure at an approval hearing which took place on 8 October 2009 at Newcastle upon Tyne District Registry.

Periodical payments

The Claimant's solicitors were anxious to investigate whether the MDU could be regarded as a secure provider for the purposes of the Damages Act 1996, in relation to periodical payments. The Claimant's solicitors sought advice on this matter.

The Claimant's independent financial adviser advised that it was in the Claimant's best interests that part of his damages should be paid by way of periodical payments, as it would be difficult to invest in a portfolio and obtain a real rate of return which matched ASHE 6115 at the appropriate percentile.

At the settlement meeting it was agreed that the MDU would not be regarded as a reasonably secure provider for periodical payments in accordance with Section 2(3) of the Damages Act 1996, as amended by the Courts Act 2003. It was argued on behalf of the Claimant that the figures for care and case management should be calculated using a different discount rate and multiplier, in order to achieve a higher rate of return nearer 4–4.5% to cover future costs. This was to act as a premium to compensate for the fact that the Claimant was, in effect, prevented from receiving periodical payments.

Although the Defendant would not concede that their inability to pay periodical payments should be reflected by way of a premium, they increased their offer to settle from £6m to £6.5m. This was to reflect the alternative discount rate to be applied in lieu of periodical payments for care and case management. The Claimant's solicitors accepted the additional £500,000 offered.

Settlement

Breakdown of General Damages PSLA (including interest)

£227,000

Breakdown of Special Damages (estimated)

Past care costs (inclusive of interest)

£150,000

Miscellaneous costs

£8000

Future care and case management costs

£4,100,000

Future aid and equipment costs

£186,000

Future occupational therapy costs

£27,500

Future physiotherapy

£40,000

Future speech and language therapy

£64,000

Future accommodation costs

£525,000

Future assisted technology costs

£10,000

Future loss of earnings

£325,000

Future Court of Protection costs

£325,000

Future educational psychology costs

£12,500

Additional amount paid by the Defendant in lieu of periodical payments

£500,000