"We are facing a secondary pandemic of neurological disease"

24 Jul 2020

"We are facing a secondary pandemic of neurological disease."
Robert Stevens Associate Professor of Anaesthesiology and Critical Care Medicine at Johns Hopkins Medicine, US.

With medical science struggling to keep up with coronavirus and its consequences, it will be several years at least before more conclusive studies as to the long term impacts of the pandemic can be produced. The law lags even further behind. BLM Partner Andrew Kerr gives guidance to claims handlers dealing with COVID-19 cases now and in the future.

Whilst COVID-19 has largely been considered to be a respiratory disease, more than 300 studies from around the world report a significant number of COVID-19 patients are displaying neurological abnormalities ranging from mild symptoms, such as headaches and loss of smell, to more severe variants commonly associated with mild to moderate brain injury.

Although the extent and severity of these COVID-19 neurological complications are only just beginning to be recognised and understood, a further complication is that many sufferers are not tested for the virus, particularly if they do not exhibit the classic symptoms of a cough or fever. Consequently, if these patients do have neurological symptoms, the fact that they are linked to COVID-19 may go undetected.  According to Johns Hopkins Medicine, a significant percentage of COVID-19 patients display confusion as the only symptom – they don't have a cough, fatigue or fever.

A small but significant percentage of COVID-19 patients have displayed neurological problems as recorded in studies from China, UK, France, Japan and Italy.  These symptoms include cerebral vascular disease, encephalopathy, impaired consciousness, agitation, deliria, hypoxia, loss of smell and taste, with the temporal and frontal lobes appearing to be most affected.

The mechanism of neurological injury is still being investigated. There is concern that a proportion of COVID-19 patients could be left with subtle brain damage that is either left undiagnosed or only becomes apparent in years to come, as occurred following the Spanish flu pandemic and the 1957 influenza pandemic.

In previous corona cases prior to this outbreak, studies reported that up to 40% of patients admitted to intensive care had cognitive symptoms more than two years later. Whilst it is too early to see if this pattern is repeated with COVID-19, increasingly the evidence suggests parallel outcomes. Notably, a recent French study reported that 40% of COVID-19 patients admitted to intensive care were diagnosed with encephalopathy whilst a Chinese paper also reported this development in 7% of COVID-19 hospitalised patients in Wuhan.

A recent UK study of neuropsychiatric complications, the Ellul et al paper in the Lancet, found that cerebrovascular events predominated in older patients but conversely that cases of altered mental status were disproportionately high in younger patients. In 153 patients with COVID-19, aged between 23-94, the study found 62% had suffered a cerebrovascular event whilst 31% recorded altered mental states including psychosis and neurocognitive dementia-like symptoms. A separate study of COVID-19 patients reported more generalised cognitive problems such as impaired memory, slower processing, executive deficits and speech and language problems.

If these surveys point to a pattern of outcomes for COVID-19 patients then this raises issues for personal injury practitioners, such as:

  • Neurological consequences said to have been caused by a non-COVID event, may have in fact been caused by a pre or post-accident contraction of COVID-19.
  • In particular might the “symptom led” diagnosis of traumatically caused subtle brain injury, wrongly attribute causation to a non COVID-19 event instead of to the virus?
  • If the non-COVID event caused neurological consequences, how are the additional effects of a COVID event to be identified, particularly if they eclipse the original injury or break the chain in causation?
  • How does a subsequent contraction of COVID-19 affect the value of damages flowing from an earlier non-COVID event?
  • What is the level of disability, and hence damages level, of cases where there is liability for the contraction of COVID-19 if causation can be established.

The fundamental point for all claims handlers which arises from this research and the level of infection in the UK (itself not yet fully understood) is that the possibility of COVID-19 having been contracted and being responsible for neurological injury and impairment must be considered and specifically addressed by medical experts. The possibility of the virus causing neurological sequelae or the impact on the claimant’s case, possibly by exacerbating their injuries or subsuming them and providing a break in the chain, needs careful consideration whether there has been a positive test for the virus or not. As with so many aspects of this pandemic, we are all still learning.

To access BLM's Coronavirus Hub for more legal updates, please click here.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Andrew Kerr

Andrew Kerr

Partner,
Manchester


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