By Dr Dawn McGuire, medicolegal consultant, and Marshal Ahluwalia, claims manager, Medical Protection
Mr F was a 30-year-old painter. During the 2010 swine flu epidemic, he received a course of Tamiflu after developing fever and flu-like symptoms. His symptoms deteriorated whereby he became short of breath and was bringing up dark sputum. He consulted Dr A who diagnosed H1N1 flu and advised conservative treatments. Three days later, Mr F was admitted for suspected pneumonia when his heart rate was 120 with an oxygen saturation of 85%.
Mr F was subsequently diagnosed with severe pneumococcal pneumonia, complicated by multilocular empyema and acute renal failure. He required a thoracotomy for complete decortication of his empyema.
Mr F brought a clinical negligence claim against Dr A for failure to admit to hospital. Mr F insisted Dr A did not examine him at all. Dr A could not recall the details of the consultation as he saw many patients with similar presentations during the swine flu epidemic. There was no recorded evidence that Dr A undertook an examination of Mr F’s heart rate, respiratory rate and oxygen saturation. Medical Protection therefore agreed to settle on behalf of Dr A as the brevity of consultation record was inadequate to assist in defending this claim.
Mr F, however, rejected the proposed settlement offer as he was hoping for a substantially higher offer. Mr F alleged that he had developed complex post-thoracotomy chronic pain syndrome making him almost housebound with disability, cold intolerant, deeply depressed, unemployable and a social recluse. Mr F's initial demands escalated to a multi-million sum.
The Medical Protection legal team carried out due diligence and initiated a social media investigation into Mr F’s life, which exposed his normal active lifestyle of playing cricket and tennis even in the coldest months of the year, frequent family outings and regular social events.
Our team submitted that Mr F had fraudulently exaggerated the extent of his injuries and intentionally provided inaccurate and misleading evidence to the experts. Subsequent enquiries with the relevant government departments also exposed Mr F’s similarly misleading account of his fabricated disability, which earned him an enhanced rate benefit to assist with his daily living and mobility needs. Mr F debated that he had a sudden remarkable improvement but had not disclosed this to all relevant parties in time; he reduced his claim demand by 66%.
Medical Protection rejected this and contended that we were no longer able to assume that Mr F’s account of the 2010 consultation (in particular, that he recalled no examination was undertaken) honestly reflected his genuine recollection. Mr F then confirmed his intention to discontinue his claim but refused to accept our terms of discontinuance. At trial, the judge permitted the claim to be discontinued and awarded a costs order in Dr A’s favour. Medical Protection had incurred defence costs to instruct panel solicitors, counsel and experts to assist Dr A and managed to recover half from Mr F’s insurers.
The Medical Protection legal team also considered contempt proceedings against Mr F and the possibility of taking steps to recover the outstanding legal costs incurred in defending the claim, but Mr F subsequently sold his house, which he jointly owned with his wife, and filed for bankruptcy. Nonetheless, the outcome of the claim was an excellent one for Dr A as he had been completely exonerated from any culpability.
- The process of handling a claim can be a long one, with numerous developments along the way. In this case, Dr A’s legal team became suspicious of Mr F’s demands and, when it became clear he was behaving fraudulently, we were persistent in taking the right steps towards achieving a good outcome for Dr A.
- Although successful on this occasion, the poor record keeping demonstrated could have resulted in a far worse result.