Clinical Negligence and the Diagnosis and Treatment of Encephalitis

Each year a small number of people in the UK will receive medical treatment for encephalitis. In most cases that treatment will be provided promptly and will be of a high standard. In a number of cases, however, diagnosis and treatment may be delayed and serious injury may result.

Where injury results from poor medical care, hospitals and general practitioners may be faced with a substantial claim for compensation.

In What Circumstances May a Claim be Brought?

A doctor is not guilty of negligence if he acts in accordance with what a responsible body of clinicians would endorse provided there is a logical basis for that view. This means that if there exists a responsible group of doctors who would support your doctor's decision even if they are a minority view, you will not be able to bring a claim unless that view is illogical. A school of thought would be illogical if there were no adequate scientific basis for it.

Medical knowledge is developing all the time so acceptable standards change. A doctor’s conduct is judged by reference to the standards that applied at the time care was provided. Judging what is acceptable is not determined by considering what most doctors would have done. A minority view may amount to a responsible body of opinion.

For patients with encephalitis the outcome and the extent to which a recovery is made may depend upon the correct treatment being provided at an early stage.

The correct treatment has two aspects to it.
Firstly, the administration of an appropriate anti-viral agent to stop the damaging effects of the virus itself. Secondly, the need to tackle the inflammatory process with appropriate treatment and medication.

The anti-viral agent Acyclovir is a potent treatment when herpes virus is involved. The failure to promptly provide Acyclovir therapy may result in a degree of brain injury that might otherwise be avoided and give rise to a claim.

Equally, the failure to provide appropriate neurological nursing and medical care geared to controlling inflammation may result in injury that might otherwise have been avoided.

If an independent expert concludes that there was an unacceptable delay in the diagnosis or treatment of encephalitis, a clinical negligence claim may be brought but the next question is what injury resulted?

Did the Delay in Diagnosis or Treatment Cause an Injury?

The answer to this question is not as easy as it may sound. The victim of a car accident will have no doubt how and when injury occurred. The victim of a medical error is frequently in a different position. The injury may be masked by the underlying condition for which treatment was required in the first place and this is particularly so in cases involving viral encephalitis. For these reasons an independent medical expert will in most cases be required to express an opinion on the injury and its cause. This will not necessarily be an expert of the same discipline requested to determine whether or not care fell below an acceptable standard and would most likely be an neurologist with a particular interest and expertise in encephalitis.

It is sufficient if the error caused or materially contributed to the injury. This means that the error need not be the only factor, it is enough in law if it made a material or important contribution.

How is Compensation Calculated?

Damage awards have four components.

1. Pain, suffering and loss of amenity.
2. Past loss.
3. Future loss.
4. Interest

Pain, Suffering and Loss of Amenity

This sum is calculated by reference to what Courts have decided in previous cases. The amount of an award depends on the severity of injury. The maximum award for brain damage combined with quadriplegia is in the region of ,190,000. A less severe injury resulting in a degree of brain damage preventing employment and necessitating a degree of care, the injured person not being able to arrange their own affairs, might attract an award in the region of ,100,000.

Past Loss

This usually includes out of pocket expenditure and any loss of earnings, as well as the cost of any equivalent purchased and the notional value of care and attendance provided by relatives and friends. This latter point is important because a patient incapacitated by viral encephalitis will invariably require care and assistance. This is calculated by reference to the commercial cost of providing such care but discounted by approximately 25%.

The total claim for past loss clearly depends upon an individuals personal circumstances and degree of disability.

Future Loss

This award represents the present value of expenditure or loss to be incurred in the future. It may include many of the types of thing for which expenditure has already been incurred but it may also include entirely new things which it can be predicted may be required in the future. For example, it may be a spouse=s intention to look after their loved one as long as possible but it may be predicted that for other reasons, for example age and the spouse’s general health, that care will have to be purchased at the full commercial rate at some stage. An award in respect of future loss is calculated by working out the annual loss and its anticipated duration.

Interest

Interest on pain, suffering and loss of amenity is calculated at the rate of 2% from the day proceedings is served. The reason this is a low figure is because awards for pain and suffering and loss of amenity increase with inflation, so a delay in assessing this particular head of damage does not result in the same loss as a delay in the assessment of past financial loss, since that financial loss is clearly calculated by reference to the actual cost at the time it was incurred. Interest on past loss is calculated at the rate of 8% from the date of injury.

How Long After an Error May a Claim be Brought?

The law applicable is set out in the Limitation Act 1981.

A claim must be brought within 3 years of the date of the error causing injury or, if later, 3 years from the date it was known or ought to have been known that a significant injury was attributable to an error.

Lawyers refer to the 3 year period as the Aprimary limitation period@ and to be on the safe side legal proceedings should be issued before 3 years have expired from the date of the injury causing error.

Clients often approach lawyers outside the primary limitation period because of a failure to appreciate that they have been injured or a failure to appreciate that an injury may have resulted from a medical error. If that happens it is necessary to decide the point in time it was known or ought to have been known that a significant injury was attributable to an error. If the primary limitation period has expired and it was known or ought to have been known that a significant injury resulted from a medical error, what then? The answer is that the Court has the discretion to disapply the limitation period if it is considered fair in all the circumstances.

However, there is one provision which may be of help to patients who suffer brain injury as a result of a failure to diagnose and promptly treat encephalitis. If the severity of injury is such that the injured person is mentally incapacitated and no longer able to conduct their affairs then time does not begin to run for the purpose of calculating when a claim may become statute barred. This effectively means that the most seriously injured may have a lifetime within which to bring a claim.

Finally, if a patient is an infant, i.e. under the age of 18, time does not begin to run until the age of majority, i.e. the age of 18 is attained. Therefore a patient injured at the age of 14, who is otherwise of normal intelligence, able to conduct their affairs and knows they have sustained a significant injury attributable to a medical error, would be able to present a claim until 3 years after their 18th birthday.

The law in relation to limitations is, however, complex and any potential claims should be made the subject of expert legal advise no matter how much outside the primary limitation period of 3 years it may be.

What is the Procedure Before Legal Proceedings are Brought?

The first stage is to obtain all the relevant health records. This is required to instruct an experts report on the standard of medical care and present condition and prognosis. You can obtain this material yourself since the Access to Health Records Act 1991 enables all patients t have access to their health records and to be provided with a photocopy. Independent medical experts will check the medical records and report on whether or not encephalitis was diagnosed and treated as quickly as it should have been. An expert opinion may also be obtained dealing with the extent of the injury that resulted.

Based on the expert evidence and in accordance with a clinical disputes pre-action protocol the case is set out by your solicitor in a letter of claim so that the defendant can investigate and decide how to respond. The defendant has 3 months within which to conduct their investigation and reply to the detailed allegations of negligence set out in the letter of claim. They may accept responsibility or deny responsibility with reasons. A simple denial of responsibility without giving reasons would not comply with the protocol.

If responsibility is not accepted it may be necessary to issue and serve legal proceedings. It is highly likely that the Court will at some stage direct the experts for both parties to meet with a view to reaching an agreement. Many cases are settled at this stage, if not before. Only a tiny minority of cases proceed to the door of the Court.

The pre-action protocol and the new rules of civil procedure governing the conduct of litigation after proceedings have been issued have been designed to ensure claims are resolved without legal costs being incurred.

Litigation Funding

There are four main options to consider. Firstly, an examination of your existing insurance policies might reveal the existence of legal expenses cover.Secondly, you may be financially eligible for Legal Aid if your disposable income and capital do not exceed £8,751 and £8,560 respectively. Note that disposable income is income net of tax and National Insurance, and fixed deductions for the cost of dependents. In addition, you may exclude £100,000's worth of equity in your home.

The third option is a conditional fee arrangement, the so-called “no win no fee” agreement whereby your solicitor receives a success fee in addition to his normal fee if you win but nothing if you lose. Such an agreement should be backed by an insurance policy providing for payment of the defendant=s costs if you lose.

The final option to consider is to pay privately. Many solicitors will only consider a conditional fee arrangement after the initial investigation has been paid for by other means. This is because a careful assessment of the chances of success and hence an appropriate success fee can often only be determined once a medical report has been obtained. At that stage, if the evidence is favourable it ought to be possible to enter into a conditional fee arrangement, backed by insurance to cover the defendants costs in the event the claim is lost. Litigation is expensive and can be risky and the private funding of a claim is unlikely to be a realistic option other than for those who are extremely well off.

Cases Involving Children

Claims involving children pose a particular problem because injury will have been sustained while the brain is developing. The extent of the injury which could have been avoided and its future consequences require the involvement of a multi-disciplinary team, including educational and neuro psychologists. It may be necessary to delay final assessment until the child reaches a stage of development when an accurate appraisal may be made of the childs future needs.

How to Choose a Solicitor

You should only consider retaining a clinical negligence expert. There are two clinical negligence panels which offer accreditation. One is maintained by the Law Society and the other by Action for Victims of Medical Accidents, a charity which offers help to the victims of medical mishaps. Panel membership is a prerequisite but don't be afraid to ask questions designed to reveal the extent of the solicitor's knowledge of viral encephalitis, it’s diagnosis and treatment.

Ask the solicitor what medical disciplines will be involved in investigating whether or not the standard of medical care fell below an unacceptable level and what medical disciplines will be involved in assessing present condition and prognosis and why.

Ask the solicitor you propose instructing how many cases of a similar type have they investigated.

It is important to realise that establishing liability depends upon proper analysis of the medical evidence and maximising an award of damages may depend upon managing a multi-disciplinary team of experts.

If your questions are not answered clearly or the solicitor appears hesitant or unsure, look elsewhere.

Timothy Spring
Solicitor

Last modified: 25/11/2005