Status epilepticus in the law courts

Little is published in the medical literature on the topic of “status epilepticus in the law courts.” I carried out a search of all case reports available internationally, via the World Legal Information Institutes and member sites (http://www.worldlii.org), covering appeal court, international, and case-law/law reform cases from around 1980 onward, using the term “status epilep*.” Twenty-eight case reports featuring status epilepticus (SE) were reviewed from Canada (10), the UK (9), Australia (5), and the USA (3), together with a single case from the Philippines. No cases were identified from Asia, Hong Kong, Kenya, New Zealand, the Pacific Islands, or South Africa. Reports from other countries (and 3 of 10 Canadian reports) were not in English and thus not reviewed. Of 25 cases reviewed, SE was mentioned but I considered them not material to the principal issues in 17 cases. This included 3 of 78 cases reported separately as part of the Australian Royal Commission into aboriginal deaths in custody, although it is notable in itself that almost 4% of the deaths occurred in individuals with a history of epilepsy/SE. A further UK case (Toth v Jarman, UK Civil Appeal Court, 2006), is also worth comment as one which has led to a standard disclosure statement now recommended for experts with respect to potential conflicts of interest. Those reports for which I did consider that SE was a primary issue are as follows: Australian Supreme Court. White & Civil Aviation Authority (2008). Unsuccessful appeal against medically disallowed pilot license, on background SE in 2002, and further blackout 2005, possibly marijuana provoked. Latin v Hospital for Sick Children, Toronto 2007. Unsuccessful claim for negligence relating to 14-month-girl who sustained severe brain damage following prolonged and recurrent seizures in the context of febrile illness. HC v Loos, Canada, 2003. Unsuccessful appeal against liability and partially successful appeal against damages in relation to severe brain injury, and episode of SE 3 years later following a traffic accident, complicated by drug and alcohol abuse. Queen v Parker, Canada 1999. A man with severe refractory epilepsy, including several prior episodes of SE, successfully defended himself against charges of cannabis possession on the grounds that he needed it for medical use, and his life would otherwise be threatened (SE). Two attempts by the state to appeal this decision failed. Miranda v Munoz & Munoz, 1985, U.S. Appeal Court. Relatives of a 19-year-old man who died after developing SE in prison, following lack of access to his usual phenobarbitone, had already been awarded damages against the prison doctor, warden, and assistant warden, but charges against four additional supervisory officials had been dismissed. On appeal, the original damages were upheld, and the four additional officials directed for a re-trial. UK Family High Court, Ms D v NHS, 2005. The court agreed with the NHS, against the wishes of her family, that it was not in the interests of Ms D, who was in a vegetative state as a result of progressive mitochondrial disease, to receive further invasive treatment. Movements, present since an episode of SE, that the family considered indicators of awareness were judged to be myoclonic jerks by experts. MG vs Health Authority, UK Civil Appeal Court, 2001. MG had surgery for a benign brain tumor causing epilepsy. After a brief initial recovery, seizures and other complications developed, and severe brain damage ensued. Experts disagreed on the relative contribution of hypoxia versus SE. Although acknowledging shortcomings in documentation, the negligence claim was again dismissed. St George v Home Office, UK court of Appeal, 2008. A 29-year-old known drug/alcohol user with known previous withdrawal seizures was allocated a top bunk in prison, had a seizure, fell from the bunk, and developed SE 4 days later, leaving him with permanent severe disabilities. The home office was found liable at trial and on appeal (in allocating him a top bunk) for his injuries, as it was accepted that the head injury from the fall probably triggered the SE, rather than the SE being purely from drug/alcohol withdrawal. Publically available legal documents, much like the published medical literature, are readily accessible via the Internet. However, in common with medicine, sorting “the wood from the trees,” and understanding the jargon is sometimes difficult. Although subject to methodologic biases, it appears SE is a primary issue for the law infrequently, but can be the basis for complex legal and medical debates. The review has reinforced my views that expert witness work should not be undertaken lightly and must be kept within the boundaries of expertise, that courts sometimes struggle to fit medical uncertainties into rigid legal statutes, and that judges and experts are generally exceptionally clever people—but not always right. Consent issues in relation to SE and treatment have not been highlighted in the courts, but are a major issue for future research. I confirm that I have read the Journal’s position on issues involved in ethical publication and affirm that this report is consistent with those guidelines. Disclosure: Dr. Cock has received payment for medicolegal reports from insurers, defense solicitors, and the crown prosecution service.

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