Simon Taylor QC and Lisa Sullivan have recently won a meningitis clinical negligence claim which is believed to be the largest involving out-of-hours doctors and the first periodical payments order against GPs not involving the NHS Litigation Authority (NHSLA).
The claim in the sum of £5.8 million (lump sum equivalent) could amount to £15 million after periodical payments (PPs).
Besides the fact and size of the settlement, it is also of interest to practitioners because of the agreement concerning PPs. The MDU (Medical Defence Union) accepted, for the first time when not done in combination with the NHSLA, that it could pay PPs within its indemnity limit. Although, it is now understood that, like the Medical and Dental Defence Union of Scotland (MDDUS), it no longer has these insurance policies in place.
Pneumococcal meningitis is every parent’s worst nightmare. The consequences of it being missed, undiagnosed and un-treated are invariably fatal and can lead to long term disability.
As this case demonstrates, it is also a difficult problem for GPs to diagnose, especially those providing an out of hours service. They are notoriously difficult cases to win.
Jacob Stratton, now aged nine, was six weeks old when he fell ill with meningitis. His parents made a number of increasingly distressing calls to the out- of-hours GP service from the small hours of 31 March 2007 until his admission to hospital on the afternoon of 1 April 2007. Despite these calls two doctors failed to comply with the instructions given to out-of-hours GPs which state:
“It is potentially unsafe . . . to provide advice only to the parents of babies and young children under 12 months who may have a high temperature. Always offer to examine all such young children (or refer for a hospital opinion)”
By the time Jacob reached hospital it was too late to prevent extensive brain damage.
Jacob was born on 15 February 2007. On Saturday 31 March 2007 he woke up crying at about 0100 hrs. He was hot. Whilst his parents were observing him, he suffered a shudder involving his whole body. His parents measured his temperature (more than once) at between 39°C and 40°C using an ear thermometer. They stripped and sponged him to cool him. In due course, Jacob went back to sleep.
Jacob awoke again at about 0400 hrs and was again distressed and crying. He was still hot, and suffered a spasm in which he was observed to shake all four limbs briefly but repeatedly. They contacted the out-of-hours medical service and spoke to Dr Smith.
Dr Smith’s account and the parents’ account differed; in particular, Dr Smith recorded the temperatures suffered as lower than the parents remembered. Nor did Dr Smith recall being told of the sort of whole body shudders that the parents recounted. Her recollection was of one short episode which sounded like a rigor. The issue of a fit related to ‘temper’ was one, according to Dr Smith, that Jacob’s mother raised, not her. Moreover, Dr Smith said that she offered to see Jacob (in accordance with written guidelines) but the offer was declined (though neither the offer nor the refusal was recorded in writing). On this consultation there were, therefore, important factual disputes relating both to the degree of illness as Dr Smith would have perceived it, and to the action taken.
In any event, Jacob had a dose of Calpol and after a while he settled and went to sleep.
At about 0700 to 0730 hrs Jacob awoke crying. He was still hot, and again suffered spasms intermittently. He was crying intensely, then intermittently spasming and seeming to become exhausted and remain lethargic. He was given a further dose of Calpol.
At about 1100 hrs Jacob’s parents took his temperature again. It remained high, between 39°C and 40°C. His spasms became longer lasting, and more frequent. His parents again called the out-of-hours medical service.
Dr Rashid rang back and spoke to Jacob’s parents at 1159 hrs. Jacob’s parents explained the whole circumstances, and were advised to take Jacob to be seen at the out-of-hours walk-in centre at Folkestone Hospital. No complaint was made about this consultation.
Jacob’s parents therefore attended the out-of-hours centre with Jacob, and were seen by Dr Evans at 1240 hrs. This is the second consultation about which complaint was made, and formed the basis of the allegations of breach of duty against Dr Evans. Jacob’s parents gave the whole history to him, and demonstrated the movements that Jacob had been making.
Dr Evans assessed Jacob, including examining his chest, abdomen, ears and throat. He did not take Jacob’s temperature, nor did he examine Jacob’s scalp or head.
At the time of the examination Jacob was not crying, but he was floppy and lethargic. He was responsive only if his attention was attracted.
Dr Evans advised that he thought Jacob had a viral infection. He reassured them that he felt that Jacob would improve.
This consultation also gave rise to factual disputes, mainly through non-admissions by Dr Evans in his statement of case. However, Dr Evans did not provide a witness statement and so impliedly accepted the parents’ account. Further Dr Evans admitted that he should have sent Jacob to hospital following his consultation at 1240 hrs on 31 March, and that Jacob would have been treated with antibiotics and supportive therapies 24 hours or so earlier than was in fact the case. (See further below)
At home, Jacob did not improve. He remained pyrexial, and lethargic, and appeared to become “lifeless”. He suffered spasms. He became more reluctant to feed. He had an unsettled night.
On Sunday 1 April 2007 Jacob’s condition remained poor. Jacob’s mother became particularly concerned when Jacob suffered a shaking fit that lasted for about 20 minutes. She re-contacted the out-of-hours service at 1411 hours.
Dr Evans rang back and spoke to Jacob’s mother again. He was off-hand, and advised that if she was unhappy she should take Jacob to the Accident and Emergency department. No substantial complaint was made about this consultation, apart from unhappiness with Dr Evans’ manner.
Jacob and his parents therefore attended the Accident and Emergency Department, arriving at 1514 hrs. Jacob was assessed and admitted.
Jacob was diagnosed as suffering from pneumococcal meningitis. He has gone on to suffer very extensive brain injury, with a cerebral infarct and hypotonia. He is a very dependent child with serious mobility and learning difficulties.
Liability settlement and approval
The expert evidence was greatly influenced by the factual dispute, namely whether the parents’ account or Dr Smith’s account was accepted by the Court. However, on Dr Smith’s account of the facts Jacob was less ill when he came under the care of Dr Evans than he would be on the parents’ account, and that made Jacob’s case on causation against Dr Evans somewhat easier to win. This gives a flavour of the complexity of sorting out the thrust of the various different outcomes possible in this type of case.
In the event, the Claimant was able to take a view that two-thirds of full liability (assessed on the basis that but for any negligence Jacob would have been neurologically normal) was reasonable.
The parties agreed two-thirds of full liability damages. Interestingly, each Defendant agreed to take one-third of liability and so the factual dispute concerning Dr Smith could not have held much sway with the Defendants advisors.
On the 3 February 2014, the Court approved the settlement of two-thirds of full liability, damages to be assessed, plus costs on the usual basis.
Quantum – settlement and approval
The parties settled, and the Court approved settlement calculated on a conventional lump sum basis, for the 100% figure of £8,700,000. That means that each Defendant was liable for one-third of that sum, namely £2,900,000.
Dr Smith is a member of the MDU for England and Wales. The MDU is a mutual and so is not an insurer backed by the Financial Services Compensation Scheme (FSCS). It is not a reasonably secure provider for the purposed of periodical payments. However, at that time it had an insurance policy (backed by FSCS) in place for its members. Therefore the Claimant was able to obtain a mixture of a lump sum and periodical payments. The latter was carved out of the lump sum figure of £2,900,000. It is understood that the indemnity for periodical payments was subject to a cap of £10 million.
Dr Evans is a member of the MDDUS. It is also a mutual but had no insurance scheme in place for its members. Therefore, it was accepted that it could not be a reasonably secure provider of periodical payments. Therefore a final settlement had to be reached against the Second Defendant.
On the 21 June 2016 the Court approved the following:
a. Periodical payments of £30,000 pa on 15 December 2016 (when Jacob will be aged 9 years) and 15 December 2017. These and all the periodical payments are to be regarded as a contribution towards care and case management and so to be index linked by reference to ASHE 6115, 80th centile, with the first uplift in 2017.
b. Periodical payments of £55,000 pa for the remainder of Jacob’s school years, namely from 15 December 2018 (aged 11) to 15 December 2025 (aged 18) inclusive.
c. Periodical payments of £80,000 pa from 15 December 2026 (aged 19, starting the December after Jacob leaves school) for life.
d. An agreement to limit the First Defendant’s liability to Jacob to the level of the £10,000,000 indemnity available to the First Defendant through her insurance arrangements and so to waive Jacob’s right to pursue the First Defendant for ongoing periodical payments should he live longer than the indemnity lasts. His life expectancy was compromised at age 38.
f. Reasonable costs to be assessed if not agreed.
This is an excellent result for this Claimant but perhaps the wider point is that in future there is potential for injustice in that there will a group of NHS patients who in effect cannot get proper PPs, simply because the negligence comes from a GP and not a hospital.
Cloisters has significant expertise in advising and representing in clinical and medical negligence cases. Contact the clerks for further information.