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

In November 2018, the client was 43 when he began experiencing a headache and fever. He also complained of smelling something that his sister couldn’t smell and said bright lights irritated him. His sister noticed unusual behaviour and was concerned because she’d never seen him so unwell.

She took him to his GP surgery the following morning. During the appointment, she had to speak for him and finish his sentences. The GP recorded his symptoms, including headaches, nausea, vomiting and sensitivity to smells, but diagnosed migraine and prescribed medication.

Three days later, the client’s condition had deteriorated significantly. He was admitted to hospital and diagnosed with herpes simplex encephalitis, a viral infection that causes inflammation of the brain.

The client suffered a severe brain injury as a result of the encephalitis. He now experiences severe cognitive difficulties, affecting his ability to manage everyday life.

He can no longer work or live independently. He also lacks the mental capacity to manage his own affairs or finances.

These changes have had a significant impact on the client and his family. The legal case focused on whether earlier diagnosis and treatment could have prevented some of the damage and led to a better outcome.

The claim alleged that the GP had failed to recognise and record the client’s cognitive impairment and delirium. It also alleged that the GP had failed to carry out a mental state examination or refer him to hospital.

The client’s case was that, if he’d been admitted to hospital three days earlier, doctors would have started treatment with the antiviral drug acyclovir sooner. This drug slows the damage caused by the herpes simplex virus by preventing it from multiplying.

The defendant denied that the GP had breached his duty of care. The defence also disputed that earlier hospital admission and treatment would have materially improved the client’s outcome.

The case proceeded to a liability trial in 2023. Liability means establishing whether someone was legally responsible for the harm suffered. The eight-day trial considered both whether the GP’s care had fallen below the required standard and whether this had caused the client’s brain injury to be worse than it otherwise would have been.

The court heard evidence from the client’s two sisters, his wife and his mother, alongside the GP. Medical experts, including specialists in neurology, general practice, neuroradiology and infectious diseases, also gave evidence.

During cross-examination, the GP accepted that the client’s sister had needed to clarify “just about every element” of the client’s history. He also agreed that the information provided about the client’s behaviour raised concerns that weren’t consistent with a straightforward migraine diagnosis.

The judge accepted the sister’s evidence about how the client had presented at the appointment. The GP experts agreed that, on the basis of her evidence, the client should have been referred to hospital that day. This would have meant starting acyclovir 55 hours earlier than it was actually given.

The judge accepted the evidence from the client’s medical experts that earlier treatment would have reduced the viral load and made the subsequent deterioration less severe.

The client had experienced a further deterioration four days after treatment began, followed by a seizure five days later. The judge concluded that earlier treatment would have led to a better outcome and rejected the argument that the improvement would have been marginal.

Importantly, the judge found that, with earlier treatment, the client would have been independent and able to work in some capacity. The court therefore found in the client’s favour on liability.

The successful liability trial established that earlier treatment would have made a significant difference to the client’s outcome. However, the case study confirms that the amount of compensation still needs to be assessed.

The next stage is to quantify the claim. This means establishing the amount of compensation the client should receive in light of the harm suffered and its impact on his life.

The source case study explains that the aim is for the client to receive the treatment and support he and his family need. It doesn’t confirm a final compensation award or specify what that compensation will fund.

If you or someone close to you has suffered a life-changing injury following a medical mistake, understanding what happened and what options may be available can feel overwhelming.

Fletchers’ specialist medical negligence team can help you understand your situation and guide you through the claims process.

Contact us today to discuss how we can help.

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