Personal injury analysis: James Bell, a partner in Hodge Jones & Allen’s medical negligence team, examines a Queen’s Bench Division decision that the claimant patient had not established that the defendant hospital’s breaches of duty in treating her when she fell ill after brain surgery had caused her brain damage.
NAX v King’s College Hospital NHS Foundation Trust  EWHC 1170 (QB),  All ER (D) 103 (May)
What are the practical implications of the judgment?
Proving causation in medical negligence cases remains very difficult. After Bailey v. MOD  EWCA Civ 883 and the Bermudan case of Williams v Bailey  UKPC 4 there has perhaps been a general perception amongst clinical negligence lawyers that in a case where medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the ‘but for’ test is modified, and the claimant will succeed.
That general feeling that it would be enough to prove “some causation” in order to succeed on 100% basis has been shown to be erroneous by the recently decided and very tragic case of NAX v King’s College Hospital.
The other significant issue in this case was that the treating neurosurgeon, Mr Chandler initially appeared to accept a number of failings in the treatment of NAX. These admissions were later withdrawn. This is most unusual.
In the course of an internal investigation, Mr Chandler wrote to the hospital’s complaints officer in the following terms:
“I am extremely unhappy and distressed about the terrible events which occurred on the 17th of November. This patient developed a serious, life threatening problem which was inadequately managed by doctors of insufficient expertise and seniority. A paediatric neurosurgical patient has been left with severe permanent damage due to an inadequate response by paediatric/PICU medical staff and I believe this Trust will be found entirely liable if this comes to litigation (and I believe this will come to litigation and strongly recommend the Trust Medico-Legal Team are involved now). It highlights significant issues about the expertise of certain members of the PICU and paediatricians. There was a lamentable primary failure of a paediatric junior doctor to inform the neurosurgical team looking after this patient at an early stage which allowed a catastrophic chain of events to develop. I remain deeply concerned that the serious issues surrounding the events of 17/11/2008 concerning the paediatric staff have still not been addressed within Kings.”
Mr Chandler subsequently withdrew many of his comments. He explained in his witness statement that he wrote the letter without the benefit of access to the medical records and that what he had said was clearly inaccurate according to the contemporaneous notes. He told the court at trail that he was now extremely embarrassed about the errors in this letter.
In his statement he said, “I stand by my comments that the care should have been better and there was a delay in administering intravenous antibiotics.”
When asked about the letter in cross-examination, Mr Chandler claimed that it had probably been written some years after the event. That was demonstrably wrong.
Having said this, the judge said that, having seen Mr Chandler give evidence, that he was satisfied that the views he expressed in the witness box were genuinely held and that his change of mind reflects his consideration of the records.
Accordingly, Claimant solicitors should be wary of relying heavily on internal statements or SUI reports in assessing the merits of a case.
What was the background?
The claimant suffered from tuberous sclerosis, which caused benign tumors to grow in her brain. She developed epilepsy. In 2008, when she was nine years old, she underwent surgery at the defendant hospital to remove a tumour. Four days later, she became unwell with a high temperature and suffered seizures and reduced consciousness during the evening. She was transferred to the high dependency unit at midnight and to the paediatric intensive care unit at 02.00 and was intubated at 02.50. She suffered significant brain damage from which she has not recovered.
The claimant maintained that her condition was inadequately managed and her brain damage was caused by seizures which started on the evening and continued overnight. Sepsis had caused the seizures, to which she was vulnerable as a result of the pre-existing tuberous sclerosis and recent surgery.
She argued that, in breach of its duty of care, the defendant had failed to treat her infection with antibiotics in a timely fashion and had failed to intubate, sedate and ventilate her, which would have been neuroprotective and would have avoided any brain damage until the antibiotics could take effect and treat the sepsis. But for those breaches of duty, the brain damage would not have occurred.
The defendant admitted that there had been a negligent delay in administering antibiotics. However, it denied that the delay had caused or materially contributed to the claimant’s injuries. It denied any other breach of duty and asserted that none of the problems suffered by the claimant were caused by any negligence in the course of her treatment.
What did the court decide?
With regards to Mr Chandler’s letter the court said that
“I have found the highly unusual letter written by NAX’s neurosurgeon, Mr Chandler, troubling. However, I am satisfied, having reviewed all the evidence, that the views he expressed initially were not properly informed and that his position at trial did more accurately reflect the reality. I have not been swayed by his final view of the case but rather have conducted my own analysis of all the evidence. The conclusions I reach though are broadly consistent with what he told me.”
Applying the test in Bolam v Friern Hospital Management Committee  2 All ER 118 of whether the medical care which the claimant received fell below the standard to be expected and, if so, whether it caused or materially contributed to any injury, the court held that although the claimant had established breaches of duty in relation to her care, causation was not made out.
The court found that, applying Bolitho v City and Hackney Health Authority  4 All ER 771, the defendant had adopted a practice considered to be reasonable by a body of appropriate expert opinion in not intubating before 00.40, but that failing to intubate thereafter represented a breach of duty, in addition to the admitted breach in delaying antibiotic treatment.
However, the court went on to find that, on the balance of probabilities, intubating at 00.40 would not have made a material difference to the outcome. Whilst the court accepted that a significant reduction in seizure activity would have had a material effect, the evidence did not establish that intubation at 00.40 would have had a sufficient impact.
Sadly however, the court dismissed the claim
The idea that that there could have been a “material effect” that does not equate to a “material contribution” as per the dicta of Bailey and Williams is a very fine distinction indeed and I query whether this case may be appealed. I note that the Claimant’s counsel requested and was provided with a detailed reasoning on the issue of causation. Again, this is an unusual feature of this case and the claimant’s arguments on causation developed and evolved during the course of the trial, as is often the case.
Interviewed by Robert Matthews.
The views expressed by our legal analysis interviewees are not necessarily those of the proprietor.
The article was first published in LexisPSL on 25 May 2019.