Gurmukh Gahir v Dr Ayodele Olusgun Ola

A general practitioner may breach the duty of care where the presenting history and observed behaviour disclose the combination of fever, headache and cognitive, behavioural or personality change requiring urgent hospital referral. The assessment must address the whole clinical picture and must not rest on unsupported assumptions drawn from a patient’s previous history or a familiar diagnosis. In a claim involving delayed treatment, causation may be established where earlier treatment would probably have reduced the viral load, inflammatory response and resulting injury, even though the treatment is not curative and the precise outcome cannot be quantified in every respect.

The claimant developed Herpes Simplex Encephalitis after consulting the defendant general practitioner on 27 November 2018. He was not admitted to hospital until 30 November, when intravenous acyclovir was commenced. He alleged that the defendant should have recognised the significance of fever, headache and changes in cognition and behaviour, and should have arranged urgent admission.

The court tried a preliminary issue concerning liability and causation. It considered disputed lay evidence, the defendant’s clinical records, and expert evidence from general practitioners, neurologists, radiologists and virologists. The central questions were whether there had been a breach of duty and whether admission and treatment three days earlier would probably have produced a materially better outcome.

1. Breach of duty. The applicable standard was whether the defendant had failed to act as no general practitioner of ordinary skill would have acted with ordinary care. The relevant presentation included fever, headache and cognitive impairment, confusion, personality or behavioural change. Those features, taken together, mandated urgent referral to hospital.
2. The judge accepted the accompanying sister’s account of the consultation. The claimant appeared disorientated, had delayed and slurred responses, unusual hand movements, balance difficulties and a perception that the floor was moving. The defendant knew, or ought to have known, of the history of fever and headache and that fever was not a symptom of migraine. He failed to appreciate the significance of the information provided, relied on unjustified assumptions based on the claimant’s prior history, and made inadequate clinical notes. Breach was therefore established.
3. Causation. But for the breach, the claimant would probably have been admitted on 27 November 2018 and acyclovir would probably have been administered rapidly. The relevant delay was 55 hours.
4. Acyclovir does not repair already damaged cells or cure Herpes Simplex Encephalitis. It inhibits viral replication. On the preponderance of the expert evidence, earlier treatment would probably have resulted in a lower viral load, a less severe inflammatory response and less severe neurological damage. Deterioration would probably still have occurred, but it would have been less severe.
5. The judge rejected the view that earlier treatment would have produced only marginal improvement. The claimant would probably have had Grade 6 or Grade 7 on the Extended Glasgow Outcome Scale, would have been independent for routine daily living, and might have returned to IT work at a lower level or with adjustments. He would nevertheless have continued to need assistance with complex matters, including managing family finances, and would probably have continued to suffer headaches.
6. The claim succeeded on the preliminary issues of breach and causation. The judgment did not determine the precise quantum of damages.

First-instance determination of preliminary liability and causation issues pursuant to an order sealed on 11 March 2022.