A four-year-old boy was referred to an orthopaedic surgeon "'because he tired easily and constantly fell over". The consultant saw him and wrote back to the GP "I am arranging enzyme studies to exclude muscular dystrophy".
Follow-up two months later was carried out by an SHO. He did not have the laboratory results in front of him but a telephone call to the laboratory secretary elicited the information that they were normal.
Over the next nine months, the boy's condition got gradually worse and he was reviewed by the consultant . The enzyme studies had now been filed in the notes; they were grossly abnormal and indicative of Duchenne muscular dystrophy. The child was referred to a paediatrician for further care.
The parents were understandably devastated by the diagnosis and by the 11 months' delay in notifying them of it. A County Court claim was brought on behalf of the child, alleging that the inevitable deterioration in his condition had been more rapid than it might have been had appropriate physiotherapy been instituted earlier. A High Court claim was brought on behalf of the parents because of the worry, doubt and shock associated with the initial false sense of security and the eventual diagnosis:
"upset in excess of that which would have been suffered in any event had the disease been diagnosed and they been so informed earlier."
The MDU accepted 75 per cent of the liability on behalf of the consultant and the SHO who had not checked the original results. The health authority accepted the remainder because of the shortcomings of the laboratory and of the system for filing results.
The child's claim was settled for Â£1,500 on the basis of the "lost opportunity" to get benefit from physiotherapy. On counsel's advice, the parents' claim was resisted as no "duty of care" was owed to them and they had not demonstrated any upset greater than that which would have been expected from the disclosure of such a diagnosis. The parents' claim was formally discontinued.
This guidance was correct at publication 01/01/2002. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.