Susan Rodway QC successfully represented the Claimant in this 16 day clinical negligence trial.
The action was significant for a number of reasons including access to justice for an impecunious patient in a fiercely contested case on the basis of pre-Jackson CFA, severe judicial criticism of a number of well known medical experts acting for the Defendant and reliance on scientific research in establishing legal causation.
The case concerned a GP’s failure to identify or suspect signs and symptoms of meningitis, including a meningococcal rash, leading to immediate treatment with Penicillin and urgent hospital transfer.
In January 2008 the Claimant, aged 42, attended the GP complaining of a rash, headache and a nine-day prodromal illness. The GP concluded she was suffering from a respiratory infection and recommended bed rest. She misdiagnosed the rash as being an allergic reaction to Lemsip Max. The Claimant returned home and fell into a coma. After being found by her husband, penicillin was administered by paramedics around five and half hours after the consultation at the GP’s surgery, by which time the disease had progressed and the Claimant suffered severe neurological injury as a result of meningococcal meningitis.
The Claimant was in a coma for three weeks and as a result of the infection, she suffered total loss of sight and substantial loss of hearing, requiring a cochlear implant.
The case was initially defended on all aspects of liability and quantum. During the trial on breach of duty and causation, the court heard evidence from eleven medical experts across six scientific disciplines. The quantum aspects were resolved and agreed on a confidential basis in the course of trial on liability.
The Defendant’s case on causation was initially based upon the evidence of her medical experts that the Claimant’s diagnosis was of “fulminant meningo encephalitis” in which the disease process was so sudden and rapid that treatment even at the time of the consultation would not have altered the outcome. The Defendant’s experts also argued that the damage sustained by the Claimant, specifically damage to her vision and hearing but preservation of her higher neurological function, was so unusual that it placed her outside the recognised medical literature which supported the case for efficacy of early antibiotic administration.
The Claimant maintained that treatment at the time of the consultation would have avoided all neurological damage. The Claimant argued, in the alternative, that treatment at that time would have made a material difference to the outcome and that causation was thus established on the basis of Bailey v Ministry of Defence  1 W.L.R 1052.
The Claimant’s experts relied on respected and seminal medical research dealing with the benefits of the early administration of antibiotics. Chief amongst these was the paper by Aronin et al which identified the risk to a patient who moves from Stage I to Stage II or III before the start of treatment.
After a lengthy trial on liability alone, which extended 6 hearing days beyond the original estimate for the trial of both liability and quantum, the Judge found for the Claimant in all respects.
On breach of duty, he found that the Defendant had not examined the Claimant properly and failed properly to exclude a diagnosis of meningococcal meningitis. The Judge rejected the evidence of the Defendant’s experts which he held was based upon opinions which were not supported by any cogent, reasoned argument. He agreed with the extensive criticism of the Defendant’s experts which was set out in various Appendices to the Claimant’s Closing Submissions.
In relation to causation, the Judge held that the Claimant had succeeded on the “but for test” on causation. He held, however, that an argument based on Bailey would have also succeeded.
His Honour Judge Oliver-Jones QC, sitting as a judge of the High Court, handed down his judgment on 4th June 2014, which can be downloaded here.
Susan Rodway QC successfully represented the Claimant, leading William Latimer-Sayer and Tamar Burton of Cloisters.
Comment from Susan Rodway QC
This case is a clear example of the real benefit of an “old style” CFA in a case which depended initially on a conflict of evidence between the Claimant and the GP. Given the risks inherent in such a case, it is highly doubtful that funding would have been obtained under the new costs regime. The case was hard fought on every point and no settlement was obtained at the Joint Settlement Meeting. The Defendant presented a raft of new expert evidence at the last minute, a mere 3 months before trial.
This new evidence was based upon the opinions of her medical experts which were soundly crushed and rejected at the trial. It raises the ugly spectre of unmeritorious clinical negligence defences succeeding in the future by postulating medical theories that can only be debunked by cross examination at trial. If the Claimant has no money to pursue this course, genuine and deserving cases will fail for no good reason.
The case is also a useful example of a successful application for interim payment on account of costs, for which the Judge provided a short, separate judgment. An order was made for the payment of £1 million on account of a total bill of £1.7 million, which figure included a 100% uplift.