Case 7 Better late than never

Jimmy Irvine, a 38-year-old man with learning difficulties, hypothyroidism and congenital heart disease is brought to the Emergency Department by his father with a 48 hour history of lethargy, fever, myalgia, headache and anorexia. He is usually cheerful and interactive and has a passion for his local football team, attending all home matches and running the line for the U16 team. The casualty officer who sees him notes that he is sweaty, tachypnoeic and un-cooperative with examination. His oxygen saturations are 89% on room air but Mr Irvine is known to have a right to left shunt and has previously been noted to be hypoxic when well.

What is your differential diagnosis?

The casualty officer believes that Mr Irvine has a lower respiratory tract infection. However, his chest X-ray is clear and the diagnosis is revised to that of a viral illness. The casualty officer advises oral fluids and paracetamol and discharges Mr Irvine to his father’s care.

Three days later, Mr Irvine is brought back to the Emergency Department. His symptoms have continued but now he has now developed urinary incontinence and has been complaining of nausea. Mr Irvine is intermittently drowsy and aggressive. His temperature is 37.7°C and his pulse is 106 per minute. Blood pressure is maintained and saturations are 82% on air, rising to 86% with a non-rebreathe mask.

What investigations would you pursue and what management steps would you institute?

The medical registrar prescribes ceftriaxone and contacts colleagues in ICU in order to arrange for Mr Irvine to be intubated prior to a brain CT scan and lumbar puncture. The anaesthetist is initially reluctant to intubate Mr Irvine on account of his central cyanosis and the fact that a decision had apparently been made several years prior that Mr Irvine was not to undergo cardiac surgery. Mr Irvine then has a brief seizure and is intubated to secure his airway.

The CT scan demonstrates significant obstructive hydrocephalus with meningeal enhancement and an external ventricular drain is inserted by the neurosurgeon on-call. CSF analysis demonstrates the presence of over a thousand polymorphs. CSF protein is elevated. No organisms are seen. Subsequently Streptococcus constellatus is grown from the CSF.

Mr Irvine has a stormy course, requiring several external ventricular drains followed by a VP shunt and a subsequent revision. A TOE confirms a significant right to left shunt. Mr Irvine is in hospital for over three months but ultimately returns home. His function is never quite as before and Mr Irvine’s elderly parents find the burden of caring for him increasingly difficult to manage. They enlist the support of a private carer on weekday afternoons to provide them with some respite.

Eight months later, the hospital receives a letter from an independent advocate asking the Trust to explain the delay in diagnosis and to state whether, if the diagnosis had been made earlier, the outcome may have been better.

How do you think the trust should reply?

Clinicians in the Trust argue that the natural history of Streptococcus constellatus meningo-encephalitis is very difficult to define, particularly in a patient with learning difficulties prior to the event. They consider that Mr Irvine has had a very good outcome given his original presentation.

Trust managers commission an independent external review of the case. The reviewer’s opinion was that (1) initial assessment of Mr Irvine in the Emergency Department was suboptimal and did not take adequate account of his communication difficulties, and (2) had Mr Irvine been given appropriate antibiotics on the day of presentation, the outcome would likely have been better, obstructive hydrocephalus may not have developed and the he may not have required any neurosurgical intervention with the long-term morbidity that this can carry.

The NHS Litigation Authority negotiates an out-of-court settlement on behalf of the Trust.

Expert opinion

The diagnosis in this case was undoubtedly delayed. Although it can be difficult to obtain a comprehensive conventional history from patients with communication difficulties of any sort, Mr Irvine was clearly septic at presentation. The casualty officer was keen to attribute the source of infection to the chest on the basis of hypoxia. Even when this was not supported by the evidence (he was known to have hypoxemia when well, and no evidence of focal consolidation on the chest radiograph), the casualty officer did not attempt to go back to the beginning.

When communication is difficult and the clinical picture is complicated by pre-existing disease (in this case congenital heart disease) it can be very difficult to reach a satisfactory diagnosis immediately and a period of observation may bring some clarity. If the diagnosis is not clear at the outset then say so – putting a firm label on a problem which is in reality unclear is unhelpful and can close minds to other more likely possibilities.

Although ultimately events dictated that Mr Irvine required intubation as an emergency, initial discussions around his appropriateness for level 3 (ICU) care seem to have been rather confrontational. It was readily evident that Mr Irvine’s usual quality of life was good and that the current illness was acute and potentially reversible.

As alluded to by the independent expert asked by the Trust to review the case, it is only possible to conclude that Mr Irvine’s outcome may well have been better had the diagnosis been made earlier.

Legal comment

Although initial contact may have been made by an ICAS advocate, the complexity of causation and the need for expert evidence in assessing the future care requirements, means that settlement would not be by way of the complaints process but by a clinical negligence claim. Expert evidence would be required on the issue of causation to assess Mr Irvine’s previous capabilities compared to his current and likely future mental capacity caused by the seizure and hydrocephalus.

The purpose of the formal NHS complaints process is to provide a factual explanation of what has happened. The complaints process cannot make an assessment of liability and complex assessment of past and future financial losses. The complaints process can provide reimbursement of minor out-of-pocket expenses. Although small ex-gratia payments (i.e. those made without an admission of liability can be made under the NHS complaints process), in a complex causal case the significant damages assessment is best undertaken in accordance with the quantum principles of a civil negligence claim.

The Trust would no doubt use the independent external review to assist in replying to Mr Irvine’s family’s concerns under the NHS complaints process. The complaint letter of response should provide an open and honest explanation for the factual chain of events but should avoid any admission of legal liability.

There is no prohibition to a parallel complaint investigation with a potential clinical negligence claim, provided the information provided to the complainant under the NHS complaints process does not adversely impact or does not adversely prejudice the Trust’s ability to defend a clinical negligence claim. This should be discussed by the Trust’s complaints manager and legal manager.

In accordance with the Civil Procedure Rules, an offer of settlement can be made by either party prior to trial by way of a Part 36 offer. In this case, if accepted by the solicitors acting for Mr Irvine, the settlement would be subject to a court approval order since Mr Irvine does not have capacity to control his own financial affairs. A Part 8 Hearing is the court’s way of ensuring a fair settlement and to protect the interests of the vulnerable adult.

The solicitors acting for Mr Irvine will need to obtain expert evidence with regard to the impact of the delay in diagnosis on Mr Irvine’s mental capacity and his care requirements. If the level of care provided by Mr Irvine’s parents has increased substantially this will need to be factored into the claim for past losses and indeed the future losses itemized in the schedule of damages may well feature professional costs and the increased need for external care support for Mr Irvine for the rest of his life (see Case 6 for further explanation of the calculation of past and future losses).

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