Brain-Damaged Child's Negligence Claim Fails On Causation

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 [2018] EWHC 1170 (QB), [2018] 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 [2008] EWCA Civ 883 and the Bermudan case of Williams v Bailey [2016] 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 These admissions were later withdrawn.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...