Failure to diagnose bacterial meningitis

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The Court of Appeal has recently handed down judgment in the case of Doy v Gunn [2013] EWCA Civ 547.

The Claimant was born prematurely in January 2002 and he remained in hospital until 18 February. On 21 March he was admitted to the James Paget Hospital in Lowestoft where he was found to have acute bacterial meningitis due to Group B streptococcus, and was treated with antibiotics.The meningitis left him severe problems.

Proceedings were brought against a general practitioner who saw him on the evening of 19 March. She diagnosed colic and did not refer him to hospital. In essence, the allegation against the GP was that she ought to have referred him and that, if she had done so, antibiotics would have been prescribed immediately which would have had the effect of preventing the development of meningitis. The trial judge held that, if the Claimant had been referred to hospital on 19 March, he would have been prescribed antibiotics and this would have prevented the development of bacterial meningitis. However, the claim failed because he went on to hold that the GP had not been negligent when she decided against a hospital referral. The Claimant appealed.

In the Court of Appeal, Lord Justice Maurice Kay considered the judgement in the court below. It was common ground that the GP's note of the consultation was inadequate. Moreover, she had no recollection of the consultation. Her evidence was therefore a reconstruction based on her note and her usual practice.

Notwithstanding his criticism of the note, the Judge accepted the GP's account that she had made a proper examination of the Claimant. His main reasons for doing so were:

  • unless the note was a fabrication (and he was satisfied that it was not), the GP could not have made findings of afebrility, abdominal softness, absence of a rash and ear infection without a tactile examination, which the parents claimed had not occurred;
  • the recording of "Alert" was inconsistent with the Claimant having been drowsy at that time;
  • the evidence of bacteriological experts was that, whilst the Claimant was probably bacteraemic at the time of the consultation, they could not say that it would have resulted in signs or symptoms indicative of established infection by then.

There were contemporary records, which provided a reliable bench mark against which to test the recollection of the Claimant's parents. He was driven to the conclusion that he could be satisfied as to the reliability of their account of his condition during the relevant period and in particular at the critical point at which the GP saw her son. Despite the shortcomings of the note of the consultation, he was satisfied that the entries that it contained could be relied upon and he therefore accepted the GP’s reconstruction of the consultation based on the note. Since the experts on general practice were agreed that, if the GP's account was accurate and the mother's was not, breach of duty was thereby ruled out and that was the end of the matter.

Maurice Kay LJ said that as the Judge was having to find facts in relation to events which occurred over a decade before the hearing and in the context of a claim which was only brought to the attention of the GP seven years after those events, his task was bound to be a difficult one. He did not accept that the Judge failed to make relevant and necessary findings. The Judge, who had unrivalled experience of and expertise in this sort of litigation, came to a clear conclusion about the consultation with the GP. There was no material error in his approach or findings.This form of meningitis was very rare but the Claimant's history of symptoms as presented to the GP was very common. He would dismiss this appeal. 

Lord Justice Moses and Sir Stanley Burton agreed.

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