Brain injured man is successful in liability trial following herpes simplex encephalitis

Our client was 43 in November 2018 when he began to feel unwell, with a headache and fever.  He complained to his sister whom he was living with at the time, of a smell that she could not smell and, although he said bright lights irritated him, she noticed that he had all the lights on. His sister was anxious as she had never seen him so unwell before. 

An appointment was made for him at his GP surgery. She drove him to the surgery the next morning and dropped him off nearby before parking but he didn’t appear to know where to go, although he was very familiar with the area.  She decided she needed to accompany him to the appointment, which she had never done before.

Our client’s sister remembers having to speak for him at the appointment and finish his sentences for him, when he did speak.  She remembers that he was fidgeting throughout the consultation.   She recalls our client telling the GP he had a pounding headache and that all the points above were relayed to the GP by either our client or herself.  She recalls that our client had to be prompted to leave the surgery.

The GP noted a few days history of headaches, nausea, vomiting and sensitivity to smells, a normal temperature, and diagnosed migraine.  He prescribed Paramax and said that our client would be better in a few days. 

Three days later our client had deteriorated significantly and he was admitted to hospital. He was subsequently diagnosed with herpes simplex encephalitis. He now suffers from severe cognitive difficulties due to a brain injury and cannot work or live independently. He does not have capacity to carry out his own affairs or manage his finances.

Allegations of medical negligence

Various allegations were made by the Claimant including that the GP had failed to note the symptoms he had and to note he had cognitive impairment and delirium, failed to carry out a mental state examination and failed to refer him to hospital. On causation, had the Claimant been admitted to hospital three days earlier, the antiviral drug, acyclovir, would have been commenced earlier, resulting in a better outcome.

The breach of duty allegations were denied by the Defendant and it was stated that it was reasonable to diagnose migraine. It was also denied that earlier admission to hospital and treatment with acyclovir would have materially improved the outcome.

How the trial played out

There was a split trial in this matter and expert evidence was exchanged from neurologists, GP experts, neuroradiologists, physicians and infectious diseases experts. Discussions between experts took place in an attempt to narrow down the issues and a round table meeting was set up.  The case did not settle and an 8-day liability only trial took place in 2023. 

During trial witness evidence was heard from the Claimant’s two sisters, his wife, his mother and the GP (for the Defendant). Expert evidence was heard from GP experts on breach of duty and from the neuroradiologists, neurologists and infectious diseases experts on causation. Michael Horne KC was Leading Counsel for the Claimant at trial.

The Defendant GP gave evidence at trial that he did not see our client as a confused man. However, he agreed in cross-examination that it was our client’s sister who had to clarify “just about every element” of our client’s history. He said that he had two patients, one of them being our client’s worried sister. He agreed that he had been told that our client had taken paracetamol and that this could bring down a temperature, which was not a feature of migraine. He also agreed that our client’s sister had had concerns about our client’s behaviour which was suggestive of an emotional disturbance, and not of migraine.

The hallmark of acute encephalitis is the triad of headache, fever and altered mental state, which might present as confusion, cognitive impairment and/or personality or behavioural change. The trial judge accepted our client’s sister’s witness evidence in terms of how our client was presenting during that consultation. The GP experts had agreed that, if the Claimant’s sister’s evidence was accepted, our client ought to have been referred to hospital that same day. This would have led to commencement of acyclovir 55 hours earlier than it had been. Acyclovir slows down the damage caused by the herpes simplex virus by preventing the viral particles from replicating.  Our client’s recovery was complicated by a deterioration four days after commencement of treatment, and a seizure five days after that.

The judgement

On causation the judge accepted the evidence of the Claimant’s experts that there was a clear relationship between viral load, immune response and outcome. Therefore, the judge found that the viral load would have been less, three days earlier, such that acyclovir would have been targeting fewer viral particles. The judge accepted the evidence of the Claimant’s neurologist that the deterioration our client experienced would have been less severe than it was, if the treatment had commenced earlier. He rejected the view that the improvement in outcome would have been marginal and found that our client would have been independent and able to work in some capacity.

I am delighted that judgment was in my client’s favour but it has unfortunately taken several years to get to this stage. It has been a difficult time for my client and his family. We will now need to quantify his case so that he can finally receive the treatment and support that he and his family desperately need.

Dr Mala Sidebottom, Moore Barlow Partner

Moore Barlow have been much more than legal experts in this case. Mala Sidebottom and Mike Horne painstakingly put together a team of world-renowned experts in Encephalitis and together they conducted thorough investigations into every possibility that might arise during the course of action, ensuring that fact-based evidence prevailed. Mike’s attention to detail was exceptional and in a case where detail was so important, it was essential.

Mala has and continues to be communicative and comprehensive in every aspect, taking time to consider and collaborate before making progress. Encephalitis maroons survivors and their loved ones – it was an incredibly lonely place, feeling as if there was no path to a resolution until we found the expertise and deep domain knowledge of this firm. Mala and Mike left no stone unturned in their pursuit of the truth. The whole of the Moore Barlow team showed compassion, tenacity and values-led behaviour which provided a huge amount of comfort to our family during a very long, very emotional rollercoaster of a time. We still have a long way to go and there is nobody I would rather have representing us for the duration of this journey.

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