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Medical Misdiagnosis – Swine Flu

If you have suffered a personal injury or illness that you believe was caused by the negligence of someone else, you may be entitled to make a personal injury claim. At The Legal Line, our lawyers have extensive experience in accident cases and clinical negligence claims and can provide you with specialist legal advice.

Contact The Legal Line on 0800 0328511, or by completing a claim enquiry form online, for advice and assistance.

Swine Flu
Symptoms of Swine Flu
Swine Flu and Medical Negligence
Examples of Swine Flu Misdiagnosis
Making a Clinical Negligence Claim
Compensation
Our Clinical Negligence Lawyers

Swine Flu

Swine flu is a form of flu, or influenza, that was first identified in Mexico in early 2009. The outbreak of swine flu has been declared as a pandemic by the WHO (World Health Organisation) as it has now spread throughout many countries.

In the majority of cases the infection has been relatively mild and most victims have been able to make a good recovery, however in some cases people have become extremely ill. Pregnant women, young children and people with underlying health conditions, such as weakened immune systems or chronic respiratory problems, are more likely to be seriously affected, but otherwise healthy individuals outside of these groups can become very unwell. Since the pandemic began there have been fatalities in several countries, including the UK.

Swine flu is a highly infectious virus, so it is important to be aware of simple measures you can take to reduce your risk of contracting the infection or transmitting it to others if you are already infected. Guidelines on this can be found on the NHS website.

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Symptoms of Swine Flu

The symptoms of swine flu can include:

• Fatigue
• Coughing or breathlessness
• Sore throat
• Headache
• Aching joints and muscles
• Vomiting
• Diarrhoea
• Runny nose
• Lack of appetite
• Fever

Unfortunately these symptoms are common to other viruses and illnesses as well, so it can be difficult to diagnose swine flu accurately without laboratory testing. It is not practical to test everyone with a suspected case however due to the potential number of patients involved, so NHS Direct have created call centres around the country. These enable people who believe they may have been infected to speak to an advisor over the telephone and describe their symptoms, for a remote diagnosis and prescription of anti-viral medication.

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Swine Flu and Medical Negligence

The procedures put in place by the NHS were designed to assist GPs, clinics and hospitals in dealing with the swine flu pandemic and reduce the strain on resources. Largely they have been successful, and many patients have benefited from the service, however a telephone consultation is not always a substitute for a medical examination and this can result in the misdiagnosis of a small number of patients.

There have been cases where a person suffering from another illness has been told they have swine flu in error and also cases where a person suffering from swine flu has been told they do not have the virus. Under these circumstances patients risk not receiving the medication or treatment that they need, with consequences ranging from a delayed recovery to serious illness or even death.

If you are concerned that you may have been misdiagnosed, you should contact your GP in the first instance for advice. You should then seek legal advice from a specialist personal injury lawyer experienced in medical negligence cases, to find out whether you have a medical negligence claim and how best to pursue your case.

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Examples of Swine Flu Misdiagnosis

Patients concerned about swine flu misdiagnosis have contacted us for advice and examples of some of the cases we have recently considered include:

Case 1: A man suffering from shortness of breath, chest pain, fatigue and a high temperature contacted his GP. He was diagnosed with swine flu over the telephone, even though swine flu does not usually present with chest pains, and was advised not to leave home or come to the surgery.

His condition deteriorated and an ambulance was called to his home. Tests confirmed that he did not have swine flu and he was suffering from a heart condition called myocarditis. Unfortunately it was too late for treatment to be successful and he sadly died.

Case 2: A woman suffered a stroke after she was prescribed Tamiflu following a telephone diagnosis of swine flu and it reacted with the Warfarin she had been taking for a number of years. She did explain to the call centre that she was on the blood thinning medication and was told it was safe to take both medications at the same time. Unfortunately this claim would be unlikely to succeed as, although doctors have recently been alerted to the potential risks of combining Tamiflu and Warfarin, no warning had been issued at the time.

There have also been a number of articles on the subject of swine flu misdiagnosis in the press:

http://www.guardian.co.uk/world/2009/aug/05/gps-fear-swine-flu-misdiagnosis

http://www.guardian.co.uk/uk/2009/aug/08/swine-flu-misdiagnosis-death

http://www.telegraph.co.uk/health/swine-flu/6211768/Patients-suffer-complications-after-swine-flu-misdiagnosed.html

http://www.timesonline.co.uk/tol/news/uk/health/Swine_flu/article6739528.ece

http://news.bbc.co.uk/1/hi/england/shropshire/8190468.stm

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Making a Clinical Negligence Claim

In a clinical negligence claim it is important to show not only that there has there been negligence on the part of the medical practitioner involved, but also that this has caused some form of injury to the patient.

It is also necessary to prove that no reasonable practitioner would have acted in the same way under the circumstances and that the outcome would have been different had the correct treatment been administered.

You may wish to make a complaint to the hospital or GP practice initially, to ensure that the matter is noted and looked into. This may prompt an explanation, or perhaps even a change in procedure to try and prevent future occurrences, however it is unlikely to result in an offer of compensation.

It is therefore important to seek advice from a specialist medical negligence lawyer, who can examine the facts of your case, collate the necessary evidence and advise you on the best way to proceed.

You must remember that time limits apply and court proceedings have to be commenced within three years of the harm done or the date when you could reasonably have found out that things had gone wrong.

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Compensation

There are two elements to a compensation award. The first, called general damages, is for the pain and suffering you have gone through and any loss of amenity (eg an inability to wash your car, look after your garden, walk the dog). The award for loss of amenity can be for a short period after a misdiagnosis or forever if that is what the medical evidence supports.

The second element of a compensation award, for your losses and expenses, is known as special damages and this aims to put you back in a position financially as if the misdiagnosis had never occurred. It is important to keep receipts for any expenditure you have related to the medical negligence so that these can be reclaimed.

In serious cases, where a person may no longer be able to continue their employment, this can be taken into account. Costs for care, equipment, transport and housing modifications can also be factored into the calculations. If the person is still able to work but not in the same role as before, particularly if they held a public service role such as a doctor or police officer, an extra amount may be awarded for loss of ‘congenial employment’. A court can also make a financial award to recognise that an injured worker's prospects on the open labour market may be limited.

If a person is fatally injured, a dependent relative such as a widow and children may be able to claim a statutory sum for their bereavement and funeral expenses, but also sums for the loss of income and contribution to the household in the form of future losses.

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Our Clinical Negligence Lawyers

The Legal Line’s lawyers are experts in all areas of personal injury, with extensive experience in clinical negligence cases, including claims for patients who have suffered due to a misdiagnosis.

We can provide you with advice and assistance on how best to pursue your individual case.

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