Shaun O'Neil looks at the recent outbreak of Legionnaires' disease in Edinburgh, the potential consequences for affected organisations, insurers and individuals and the approach to claims.
Although the onset of new cases has declined, at the time of writing this article, the Edinburgh outbreak currently stands at 99 cases, including 3 fatalities. Tragically, this yet again demonstrates the devastating impact that an outbreak of Legionnaires' disease can have within the surrounding community.
It is now common knowledge that Legionnaires' disease is spread by the inhalation of water vapour that has been contaminated with the legionella bacteria. In the event of infection, the individual can develop flu-like symptoms and then severe pneumonia. The most severe cases can result in multiple organ failure and, as has again been demonstrated following the Edinburgh outbreak, it can prove fatal. However, both the recent Edinburgh outbreak and the events following the Barrow outbreak in 2002, have not been associated with the earlier mortality rates of in excess of 12%. The new treatments and antibiotics that the medical profession has been able to deploy have reduced this to around 3-4%.
Challenge for insurers
The challenge for insurers is to manage a higher proportion of cases where a full recovery will not be made and where the attendant consequences for often elderly individuals are particularly severe. This was first demonstrated following the 2002 outbreak in Barrow. Here there were in excess of 170 confirmed cases but only 7 fatalities. Until the effectiveness of the new treatments had been put to the test during the 2002 outbreak, in excess of 30 deaths were being predicted. It was the pro-active practices adopted by the local NHS trust that ensured that the outcome did not match those predictions.
Again, at the time of writing, the source of the Edinburgh outbreak is not yet known and investigations are ongoing. Two separate organisations have been subject to improvement notices but the authorities have been quick to ensure that the media does not construe this as indicating the source of the outbreak.
As ten years have now passed since the Barrow outbreak and we are now in the grip of a recession, the concern must be that the lessons learned have been forgotten. In the drive to cut costs and remain competitive, are the rigorous requirements of the HSE's Approved Code of Practice and Guidance "The Control of Legionella Bacteria in Water Systems" being overlooked or are short cuts being taken?
The difficulties presented to the interested parties and insurers by an outbreak on this scale are immediately apparent. Newcastle firm Crutes, which merged with DWF in January 2012, represented Barrow Borough Council on the claims resulting from the outbreak. There is a need to control the investigation process, as far as is possible, and the ensuing claims. The issue of costs in the current climate remains a major factor. Following the Barrow outbreak, when all the facts came to light, the insurer made an early admission of primary liability and this was publicised. In turn, we worked closely with the insurers to help design a matrix for valuing those claims, given the absence of any volume of authority to assist in the valuation of such a broad range of outcomes. Those outcomes ranged from a few weeks of symptoms through to brain injury and fatal claims.
A pro-active approach
Affected insurers will need to take a pro-active approach in the management of any claims made. As set out above, it is the volume and potential range of claims arising from a single incident which will pose a challenge to those affected. Following the Barrow outbreak, the insurer identified the few medical professionals that did have appropriate expertise of Legionnaires' disease. A panel was set up to be instructed and the cost was controlled and reimbursed directly by the insurer. This controlled costs and the outcome was also that most expert reports were obtained on a single joint basis. It was extremely rare, thereafter, for parties to instruct their own nominated expert.
One thing that has moved on since Barrow is the importance placed on rehabilitation and the introduction of the Rehabilitation Code. Legionella falls squarely within the rehabilitation process. Once it is clear who the potential defendants are, experienced rehabilitators who know of the symptoms which can emanate from the disease have a key role in providing support and managing optimum outcomes and should be involved at the outset.
Causation
The focus of the investigating authorities over the coming weeks will now be to identify the precise cause of the outbreak. Given that there appear to be several potential sources in Edinburgh, much will depend on whether or not the specific serotype can be identified and traced back to a single site. If not, then the key legal battleground will be causation. It is not just the question of responsibility for the claims arising. It is also the potential for a criminal prosecution to follow, which the HSE are likely to see as being in the public interest, with all the attendant risks to the business and its reputation should it be convicted.
Lessons learned
Ten years after Barrow, Edinburgh is the latest area to suffer the consequences of an outbreak of Legionnaires' disease. Does this suggest that the lessons learned in 2002 have been forgotten? In the current economic climate, will outbreaks become more frequent if the risk management required in the treatment of water systems is scaled back or overlooked? Complacency may be an unwanted by-product of the Government's purported aim to reduce regulation in industry and the ongoing review in this area instigated by Professor Lofstedt's review last year. The potential consequences for affected organisations, insurers and individuals are there for all to see following recent events in Edinburgh. The experiences of dealing with Barrow have shown some key lessons are there to be learned, alongside the need to include as part of the response the modern emphasis on rehabilitation.
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