NAX v King’s College Hospital NHS Foundation Trust [2018] EWHC 1170 (QB) (18 May 2018)

This case concerns treatment given to C [“NAX”], a girl then aged 9,… following neurosurgery in 2008. (paragraph 1)

NAX had a complicated medical history. She had… 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… (paragraph 3)

… In 2008… a decision was taken to admit her for resection of a subependymal giant cell astrocytoma… 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 C’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. (paragraph 4)

C 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, C 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. (paragraph 5)

Ds deny liability. At this stage, I am required to determine the issues of breach of duty and causation. (paragraph 6)

C’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.

  1. 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.” (paragraph 8)

D 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. (paragraph 9)

…NAX’s care on the night of 17 – 18 November 2008 could generally have been better. She was very unwell, and her mother was justifiably concerned. Up until 22.00, the impression was of a lack of overall control or “joined up thinking”. That must have added to KAX’s distress and worry. Ds admit a breach of duty in delaying antibiotic treatment. Further, I have found that NAX ought to have been intubated by 00.40. Failing to intubate at that time represents another breach of duty. I am not persuaded that NAX ought to have been intubated before then for a CT scan. (paragraph 119)

Although C has established breaches of duty in relation to her care, causation is not made out. On the balance of probabilities, intubating at 00.40 would not have made a material difference to the outcome. HHE syndrome is a poorly understood condition. While I am prepared to accept that a significant reduction in seizure activity would have had a material effect, the evidence does not establish that intubation at 00.40 would have had a sufficient impact. (paragraph 120)

It follows that I must dismiss this claim. (paragraph 121)