Over the following year we will be sharing a series of question and answer articles about our day-to-day lives in the medical negligence team. Following on from World TB Day, we asked Julie Marsh, a senior associate solicitor in the clinical negligence group, about her experience of running medical negligence claims in relation to the delayed diagnosis and management of TB.
What key information do you need from an individual who has concerns about their medical care and whether there has been a delay in diagnosis of tuberculosis?
It is important to have an accurate chronology of events in a case like this. I need to understand why the client thinks there has been a delay in diagnosis and treatment of tuberculosis and how long that delay might have been.
I take a detailed statement from the client and any family members about when they first noticed symptoms indicative of tuberculosis, when they first sought medical help and their condition and reported symptoms at that time.
It is also important to understand any treatment that has been given over time, and the effect that this has had on the individual.
Can you investigate a case even if the individual is still having treatment?
It is important to investigate a medical negligence claim as quickly as possible. There are time limits associated with bringing claims of this nature which need to be considered. It is also important to start the investigation as soon after the events as possible, so that the client’s recollection of the facts is as fresh as it can be.
Treatment for tuberculosis can go on for six months or more. Sadly, tuberculosis can have long-lasting effects which need ongoing treatment and management of symptoms, but a client shouldn't wait until the conclusion of their treatment to consider a claim. The sooner we can establish liability, the sooner we can obtain interim payments to help ease any financial hardship from loss of earnings and other costs, often long before the case is finally concluded.
How would a case like this be funded?
Usually a claim is funded by way of a Conditional Fee Agreement (sometimes called a “No Win, No Fee Agreement”) backed by after-the-event insurance. This means that there are no upfront costs to the client to get the investigation underway and that the client will not be liable for any legal costs if the investigation is unsuccessful. In a successful claim, the Defendant pays the majority of the legal costs.
It is very important to discuss the funding arrangements for bringing a claim with a client at the outset, so that they understand the terms of the agreement and are entirely comfortable with them before a claim is underway.
Where a claim, even if successful on its merits, will not be financially viable for the claimant, I let them know at the outset as we never encourage a client to pursue a disproportionately expensive claim.
How do you investigate whether the hospital/GP has acted negligently?
To investigate a claim for medical negligence, it is necessary to assess the standard of care that the patient received from their health practitioner, whether that was their GP, or the doctors at a hospital.
Once I have a statement from the client, I obtain a copy of their medical records and analyse treatment that was given to the client. It is very important to have the client’s input at this stage as there can be factual inaccuracies in medical records and there might be a factual dispute which is critical to the case.
A claim for medical negligence must be supported by medical expert evidence. In tuberculosis cases a respiratory physician will usually be required to comment on the extent of the injury that the client has sustained as a result of any delay in diagnosis, and will also be asked to give an opinion on the client’s condition and prognosis.
The standard of care must be assessed by an expert from the same discipline as the health practitioner whose care gave rise to the claim. So, for example, a GP expert would be needed to assess care from a GP.
How do you calculate the level of compensation in a delay in diagnosis of tuberculosis case?
The valuation of any claim is entirely tailored to the individual client, the impact of their injury and their circumstances.
The client’s injury and its impact on their life must be considered very carefully. Where there has been a degree of respiratory disability as a result of a delay in diagnosis of tuberculosis, this can have far-reaching effects on the individual, their family and all aspects of their life. I make sure that I understand fully how the claimant’s life has been affected by the additional injury that has been caused by the delay.
It may be necessary to include a claim for new accommodation. In a case I have recently worked on, the client lived in a very old building where it was difficult to maintain a constant air temperature or to have standard central heating. As a result of the bronchiectasis caused by the tuberculosis and the damage to her lungs from the delay in treatment, any change in room temperature caused extreme coughing fits. My client will need to move to a modern and well insulated and centrally heated house in the future so that these coughing fits can be avoided. In this scenario, we include a claim for the additional costs associated with moving to suitable accommodation from the defendant.
It is also important to consider the future in cases of this nature. Unfortunately, damage to the lungs can result in reduced immunity to chest and other infections. If a condition called Aspergillosis is contracted then the consequences for the client can be severe, sometimes requiring the removal of a lung, which can be life-threatening and extremely debilitating.
Why do you think it’s important for tuberculosis negligence cases to be investigated?
Unfortunately, there is currently surprisingly little awareness of tuberculosis and its dangers. However, the signs and symptoms are relatively easy to identify, and timely treatment for inactive tuberculosis is straightforward with minimal long term effects. However, the consequences of any delay in treatment can be devastating to the individual and their family, and the impact on their finances and way of life can be considerable.
Boyes Turner’s clinical negligence team are currently acting in several cases of serious disability and devastating injury arising from delayed diagnosis and treatment of TB. If you or a member of your family having suffered severe injury as a result of delayed treatment for tuberculosis or other infectious disease, contact us on 01118 952 7219 or email firstname.lastname@example.org.