NAX v King's College Hospital Nhs Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip |
| Judgment Date | 18 May 2018 |
| Neutral Citation | [2018] EWHC 1170 (QB) |
| Court | Queen's Bench Division |
| Date | 18 May 2018 |
| Docket Number | Case No: HQ16C00377 |
[2018] EWHC 1170 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Handed down at Liverpool Civil Justice Centre
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Yip DBE
Case No: HQ16C00377
Mr Angus McCullough QC (instructed by Leigh Day) for the Claimant
Mr Michael de Navarro QC and Ms Nina Unthank (instructed by Kennedys Law LLP) for the Defendant
Hearing dates: 19, 20, 21, 22 & 26 March 2018
Judgment Approved
This case concerns treatment given to the claimant, a girl then aged 9, while in King's College Hospital, following neurosurgery in 2008.
At the outset of the trial, I made an anonymity order to protect the claimant's identity. Accordingly, I shall refer to her as NAX and her mother as KAX. I will also refer to other family members by their initials only.
NAX had a complicated medical history. She had a condition known as tuberous sclerosis. Amongst other problems, this congenital condition causes benign brain tumours. During her early years, NAX was developing normally but as the condition took hold, she developed epilepsy. She also had autistic traits and a moderate learning disability. Despite her various diagnoses, her mother was keen that I should know that she did not regard NAX as disabled prior to the events in question.
In 2003, NAX had surgery to resect a tumour at Great Ormond Street Hospital. In 2004, she was admitted to hospital suffering from seizures, a very high temperature and decreased consciousness. She was treated for encephalitis and went to on to make a reasonable recovery. Her seizures continued to occur. In 2005, it was noted that there were new lesions in the brain. NAX was kept under review. In 2008, NAX was seen by Mr Chandler, a consultant neurosurgeon at King's College Hospital and a decision was taken to admit her for resection of a subependymal giant cell astrocytoma. Mr Chandler performed that surgery on 13 November 2008. NAX appeared to be recovering well afterwards. However, she became unwell on 17 November. She developed a high temperature and, at or around 19.00, she began fitting. She suffered further seizures and reduced consciousness during the night. 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. Sadly, NAX had suffered significant brain damage from which she has not recovered. It is the Claimant's case that her condition was inadequately managed, and that prolonged seizure activity led to hemi-convulsion, hemiparesis, epilepsy (HHE) syndrome which is the cause of the damage.
The claimant seeks damages for the disability flowing from the additional damage to her brain. She also suffered injury to her left hand, leading to the loss of two fingers as a result of the administration of phenytoin. It is accepted that the administration of that drug was not in itself negligent. However, the claimant contends that proper management would have avoided the need for a second dose of the drug and therefore that the hand injury is also a consequence of the defendants' negligence.
The defendants deny liability. At this stage, I am required to determine the issues of breach of duty and causation.
There is no doubt that this is a complex case, involving overlapping disciplines. Both parties called evidence from experts in neurosurgery; neurology; neuroradiology and paediatric intensive care.
The claimant's case was conveniently summarised at paragraphs 2 and 3 of the Particulars of Claim:
“2. The said brain damage was caused by seizures which started after 19.15 hours on 17 November 2008 and continued thereafter into 18 November 2008. The cause of the said seizures was sepsis which provoked seizures in a child who was susceptible and vulnerable thereto as a result of pre-existing Tuberous Sclerosis (“TS”) and recent surgery.
3. In breach of duty, the Defendant failed to treat the Claimant's infection with antibiotics in a timely fashion and failed to intubate, sedate and ventilate the Claimant: which would have been neuroprotective, and would have avoided any brain damage until the antibiotics could take effect and treat the sepsis. But for the said breaches of duty, the brain damage would not have occurred and the claimant's neuro-development would have returned to its prior state.”
The defendants admit that there was a negligent delay in administering antibiotics. However, they deny that this caused or materially contributed to NAX's injuries. They deny any other breach of duty and assert that none of the problems suffered by NAX were caused by any negligence in the course of her treatment.
It is an unusual feature of this case that such denials are made against a background of what appears to be a frank acceptance of liability made by the treating neurosurgeon, Mr Chandler. 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 17 th 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 me 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.” I shall have to return to Mr Chandler's evidence in due course, but I find it unsatisfactory that he expressed such a firm view on a matter of such importance without first informing himself of what was in NAX's notes.
There is little doubt, not only from what Mr Chandler has said but also from the defendants' own expert evidence, that there were failings in NAX's care. Aside from the defendants' admitted delay in administering antibiotics, the evidence at trial from their own experts suggested that there was a delay in intubating and in arranging a CT scan. Further, after NAX was transferred to intensive care, her external ventricular drain (“EVD”) was accidentally left shut for five hours. There is no suggestion that this caused any harm, but it necessitated an Adverse Incident Report and has probably added to the family's concern about a general lack of care.
Of course, it is not sufficient to identify that the claimants' care could have been better and that there was a poor outcome. The question is whether NAX's medical care fell below the standard to be expected having regard to the well-known test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 and, if so, whether that caused or materially contributed to any injury.
Legal principles
There is no dispute about the legal principles which apply in this case. Following Bolam, a medical practitioner is not to be regarded as negligent if he or she acts in accordance with a practice accepted as proper by a responsible body of medical opinion. The Bolam test is to be applied as explained by the House of Lords in Bolitho v City and Hackney Health Authority [1998] AC 232. That case makes it clear that the court must be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. Lord Brown Wilkinson said:
“I emphasise that in my view it will seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable.
…
It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed.”
In relation to causation, the parties are agreed that the issue is whether any breach of duty caused or materially contributed to the claimant's injury. The defendants did not advance any argument as to the scope of duty.
The legal principles in this case are therefore entirely straightforward and very familiar to all practitioners in this field. I do not need to spell them out in any more detail. The sensible common approach to the law taken by the parties allowed for the focus at trial to be on the facts, which is where the complexity lies.
The evidence
For the claimant, I heard from her mother, KAX and from the mother's partner CD and aunt CS, who had also been at the hospital on the night in question. I did not find the evidence of CD and CS to be of assistance on the issues I must decide. I did not think either were reliable witnesses. CD was rather histrionic, and CS was a poor historian. Of course, I accept that their recollections are inevitably coloured by emotion and...
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