In November 2018 C aged 43 contracted herpes simplex encephalitis.  On Tuesday 27 November 2018 he saw his GP, D.

On Friday 30 November 2018 C was admitted to hospital as an emergency. He was assessed. Acyclovir was commenced.

C was very seriously ill. C had suffered a significant brain injury. He was unable to live independently.

C’s case was:

  1. On Tuesday 27 November 2018 D ought to have appreciated that C was suffering from a serious neurological illness which mandated urgent admission to hospital.
  2. Had C been admitted to hospital on Tuesday it is probable that acyclovir would have been commenced.
  3. Because C was not admitted to hospital until Friday 30 November 2018, acyclovir was delayed by about 55 hours.
  4. Acyclovir treatment on Tuesday would have resulted in a better outcome.

 D’s case was:

  1. There was no breach of duty on the part of D.
  2. It could not be established that earlier administration of acyclovir would have made a difference. 

The court found breach of duty; and that C would have had a better outcome.


The central issue concerned C’s clinical presentation on 27 November 2018; C and D’s accounts differed. The court preferred C’s evidence.

Many clinical negligence cases are decided on their individual facts and expert evidence, rather than on points of law. And so too in this case

Author: Doctor Anthony Barton

Dr Anthony Barton qualified as a doctor in 1981 and switched to law in 1992. Anthony also co-edits the leading text “Clinical Negligence” with the sixth edition having recently been published. He is also a former assistant coroner and joint owner of Medical Negligence Team Law.