We have been acting for a client aged in his 80s (the Claimant) in connection with a clinical negligence claim against two GPs based at a GP Surgery in Oxford.
In 2015 the Claimant was a patient at the surgery and in March of that year, became unwell feeling weak and shaky and suffering from a fever. On 23 March 2015, he was attended at home by Dr S of the surgery and on the following day, 24 March 2015, by the first Defendant (Dr B). The Claimant was hot and cold, shivering at night with dizziness and his pulse rate was 90.
Although the doctor queried if the Claimant was suffering a urinary tract infection, no dipstick test was carried out and no mid-stream urine (MSU) sample taken. The doctor prescribed Coamoxiclav which is a broad spectrum antibiotic.
There was no attempt made to diagnose a urinary tract infection or identify the organism causing the infection. Dr B’s preferred diagnosis was a viral infection with the UTI being an alternative possibility.
The Claimant commenced taking Coamoxiclav but by 26 March 2015 was feeling worse and telephoned the second Defendant (Dr F), reporting dark urine which was stinging. Dr F had access to the records of Dr S of 23 March and from Dr B on 24 March 2015, referenced a negative dipstick test from a previous occasion (likely 23 March 2015), formed the impression the Claimant was suffering from a viral illness and advised the Claimant to stop taking antibiotics. No attempt was made to perform any urine tests nor prescribe any alternate antibiotics or see the Claimant in person.
On 29 March 2015, the Claimant was diagnosed with a urinary tract infection and septicaemia and admitted to hospital in Oxford with a diagnosis of urosepsis which is a serious and potentially fatal condition.
The Claimant remained in hospital receiving treatment until 08 April 2015. After discharge from hospital, the Claimant remained physically debilitated for a considerable time and was readmitted to hospital in Liverpool with sepsis in June 2015. It was the Claimant’s case that it took him approximately one year to return to good health suffering from a prolonged period of weakness, fatigue, low energy levels, with dependence upon care for a period of about six months.
The Claimant’s case against Dr B (the first Defendant) is that on 24 March 2015 he failed to test the Claimant’s urine with a dipstick and arrange for an MSU and that he prescribed antibiotics ie. Coamoxiclav without any attempt to identify the organism responsible for the infection.
This Defendant maintained that although he could not be sure of the reason for not obtaining a sample, it was likely down to either not having a urine testing kit available at the time of his visit to see the Claimant or the Claimant being unable to provide a sample, either because he was bedbound or because he was simply unable to produce a urine sample. The doctor also maintained that in the absence of urine testing he decided to treat with a broad spectrum based antibiotic ie. Coamoxiclav.
The First Defendant’s primary diagnosis was that the Claimant was suffering from a viral infection but with a possible secondary diagnosis of a UTI hence the provision of the antibiotic Coamoxiclav.
GP expert evidence obtained by the Claimant supported the Claimant’s contentions but expert evidence obtained by the First Defendant contended that the First Defendant’s actions were reasonable and not negligent.
The claim against the Second Defendant (Dr F) was that he failed to take note of the possible diagnosis of urinary tract infection and the prescription of broad spectrum antibiotics, that he failed to see the Claimant and assess him and that he relied upon the results of a negative urine dipstick test from 23 March 2015 when the First Defendant had made a secondary diagnosis of a UTI on 24 March 2015.
The Claimant and the Second Defendant again obtained competing GP expert opinion – one supporting the Claimant’s case that the Second Defendant was negligent and one supporting the Second Defendant’s case that the Claimant was suffering from a viral infection which did not require a continuation or prescription of antibiotics.
Both the Claimant and the First and Second Defendants obtained further expert evidence from Consultant Urologists and Microbiologists dealing with causation and these experts were similarly opposed to the other’s opinion namely, whether an earlier diagnosis/treatment would have avoided the Claimant’s injury and admission to hospital.
Given the issues between the Claimant and the First and Second Defendants, it became necessary to issue Court proceedings in March 2019. At the same time as proceedings were served on the First and Second Defendants, the Claimant made a formal offer (known as a Part 36 offer) to settle his claim in the sum of £15,000.00.
The Claimant sought to engage the First and Second Defendants in negotiations suggesting ADR but this was rejected with both Defendants continuing to dispute liability.
Thereafter the case proceeded to Trial in March 2022 with that Trial, subsequent Judgement and costs arguments taking up the best part of six days.
Ultimately, after hearing full argument including evidence from the Claimant and the First and Second Defendants and a total of six experts, the Judge ruled as followed:-
- The case against the First Defendant should be dismissed. The Judge accepted that at the time of the First Defendant’s visit to the Claimant on 24 March 2015, that the Claimant was either unable to produce a urine sample or was too unwell to do so and that given the prescription of antibiotics (Coamoxiclav), it was reasonable not to leave the Claimant with the means to provide a urine sample thereafter given that the taking of antibiotics would impact on the results of the sample;
- That it was negligent of the Second Defendant either not to continue with Coamoxiclav or to prescribe a different antibiotic to treat what the Judge found to be an established diagnosis of UTI resulting in the development of urosepsis
- That there should be an award to the Claimant for his personal injury and out of pocket expenses assessed at £15,685.00.
Given the Claimant had beaten his Part 36 offer made in March 2019, the Claimant was awarded penalty interest/compensation and entitled to indemnity costs against the second Defendant so the overall award of damages came to £18,576.00.
At a further hearing dealing with costs, the Judge also ruled that the unsuccessful Defendant (D2) should pay the costs of the successful Defendant (D1) rather than require the Claimant to pay the costs of the successful Defendant limited to a sum not exceeding the amount of his compensation as was the contention of the First Defendant and in line with the ruling in Cartwright v Venduct Engineering.
In arguing costs, the Claimant relied on long established authorities set out in the cases of Sanderson and Bullock and the more recent authority of Jabang v Dr Wadman and others. Ultimately the Judge ruled in favour of the Claimant.
S J Edney solicitors obtained compensation of £15,685.00 plus the penalty interest on the Second Defendant’s failure to beat the Claimant’s Part 36, the overall award came to £18,576.00 for this client during 2022
This is a claim where unfortunately the Defendants refused to negotiate and which ultimately resulted in a costly award to the Defendants of compensation for the Claimant and significant costs. In the opinion of the solicitors this claim could and should have been compromised at a very early stage thus avoiding the time and costs involved in a six day Trial. Despite a number of requests on our part for the Defendants to try and settle this matter, these requests were ignored. This is a case where a very early part 36 offer astutely calculated has ultimately been of considerable benefit to the Claimant at the end of such a long running case.