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

[2018] EWHC 1170 (QB)

Case No HQ16C00377

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Handed down at Liverpool Civil Justice Centre

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 18 May 2018

Before

MRS JUSTICE YIP DBE

Between

NAXClaimant

KING’S COLLEGE HOSPITAL NHS FOUNDATION TRUSTDefendant

Mr Angus McCullough QC (instructed by Leigh Day) for Claimant

Mr Michael de Navarro QC and Ms Nina Unthank (instructed by Kennedys Law LLP) for Defendant

Hearing Hearing dates: 19, 20, 21, 22 & 26 March 2018

Judgment Approved

[1]This case concerns treatment given to the claimant, a girl then aged 9, while in King’s College Hospital, following neurosurgery in 2008.

[2]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.

[3]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.

[4]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.

[5]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.

[6]The defendants deny liability. At this stage, I am required to determine the issues of breach of duty and causation.

[7]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.

[8]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.”

[9]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.

[10]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 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.”

[11]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.

[12]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.

[13]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

[14]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.”

[15]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.

[16]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

[17]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 the passage of time and I do not blame them for either. Were it necessary to analyse their evidence in detail I might say more. However, the way in which the issues developed means I can simply put this evidence on one side. It does not advance the claimant’s case but equally, so that it is clear, I do not regard CD and CS’s evidence as damaging the claimant’s position. In the end, neither party invited me to place any particular reliance on what CD or CS said.

[18]By contrast, I thought KAX was an impressive witness. She is a professional woman and struck me as being sensible and robust. I am sure it must have been upsetting for her to give evidence, recalling traumatic events, but she remained calm and measured. I have considerable sympathy for her. It is apparent that she recognised that something was seriously wrong and felt that her concerns were not being taken seriously enough. In his closing submissions, Mr McCullough QC accepted that the medical records were likely to provide the most reliable starting point in relation to timings and points of detail. I agree. However, I do also take account of the evidence KAX gave.

[19]I also heard from six doctors involved in the care of NAX, spanning a range of disciplines. Given the time that has elapsed, some of the junior doctors have moved on to other hospitals. I heard two of the witnesses via video link from Australia.

[20]It is surprising that the doctor who appears to have spent the most time with NAX on that night was not called by the defendants. She was Dr Baatjes, the registrar on duty on the high dependency unit. Initially, she was referred to at trial as “Dr B” as her name was not easy to read in the notes. However, the PICU consultant, Dr D’Silva, readily identified her as “Nicky Baatjes”. A simple internet search revealed a doctor by that name at the Evelina Children’s Hospital at St Thomas’, London. I am quite sure this was the same woman. Given that the defendants had traced witnesses in Australia, they could and should have traced Dr Baatjes. The court specifically directed that the defendants should disclose statements from “all concerned with the relevant treatment and care of the Claimant.” Mr McCullough QC is critical of them for not serving statements from Dr Baatjes or from a nurse, Catherine Phillips, who was also heavily involved in the assessment and treatment of NAX. He invites me to draw adverse inferences from the failure to call these witnesses, following Wisniewski v Central Manchester Health Authority

[1998] EWCA Civ 596

[21]I am entirely satisfied that there was no sinister motive behind the defendants’ failure to call Dr Baatjes or Nurse Phillips. I do not, for example, infer that the defendants thought their evidence would be unhelpful to their case. However, no good reason is put forward for not calling these witnesses, particularly given the court’s direction. The most that is said is that they were not “decision takers” and that they were unlikely to have any independent recollection beyond the medical records. I believe the reality is that the defendants gave no real thought to whether Dr Baatjes or Nurse Phillips could give useful evidence and did not seek to trace them.

[22]I have regard to the principles set out by Brooke LJ in Wisniewski, as follows:

“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potential detrimental effect of his/her absence may be reduced or nullified.”

Factually, this case is rather different from Wisniewski. In that case, there was an issue as to whether a doctor should have been called and what he would have done had he attended. The defendants did not call the duty doctor. The judge found (and the Court of Appeal agreed) that a weak prima facie case was strengthened if for no good reason the doctor was unwilling to submit him/herself to questioning about was he/she would probably have done.

[23]It is not entirely clear what inferences Mr McCullough QC invites me to draw from the absence of Dr Baatjes and Nurse Phillips. I am clear though that the claimant should not be penalised by any evidential gaps which are of the defendants’ making. That applies to criticisms of certain aspects of the medical records and the defendants’ investigation, as well as to the failure to call these two witnesses. Mr McCullough QC said in his written closing submissions:

“The factual evidence from both C’s family and the medical witnesses requires to be evaluated against [the medical records], but bearing in mind that D has not chosen to call key witnesses.”

It seems to me that this is a sensible approach, and the correct one in this case. When considering the evidence, if there are gaps that could have been plugged by the defendants, I will bear that in mind in evaluating the evidence overall. I am inclined to give the benefit of any doubt to the claimant. I bear in mind the principles set out in Wisniewski, while taking care to analyse the whole evidential picture.

[24]Mr McCullough QC suggests that “Mr Chandler emerged in evidence as volatile and inconsistent”. It might be thought that this is a strong allegation to make against a senior consultant, but it is fair to say that Mr Chandler’s presentation in the witness box was unusual and that his position at trial represented an about-turn from that in the letter to which I have already referred. He admitted that he was very emotional and distressed about NAX’s outcome. It was apparent that he is a doctor who cares deeply for his patients. While that is to his credit, I consider it regrettable that he allowed his own emotion to cloud his response to the investigation of what happened to NAX. The family and the junior doctors were entitled to expect him to take a balanced, professional approach to the investigation and I do not think it was particularly fair to any of them for him to respond as he did.

[25]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. His suggestion that he would often take months or more to respond to a complaint was extraordinary. If nothing else, I hope that Mr Chandler takes away from this case the need to respond promptly and carefully to investigations and complaints.

[26]Having said this, I did not have the impression (suggested by Mr McCullough QC) of “extreme defensiveness” when Mr Chandler gave his evidence. I thought he was a truthful witness. I agree with Mr McCullough QC’s submission that Mr Chandler’s letter expressed genuine views and concerns and was written at a time when he plainly had a forceful impression, which he had acquired from his involvement in the immediate aftermath. This is a feature I regard as important and which I put into the balance in assessing the evidence. However, having seen Mr Chandler give evidence, I am satisfied that the views he expressed in the witness box are genuinely held and that his change of mind reflects his consideration of the records. Of course, I must make my own assessment of all the evidence, including the records.

[27]Mr McCullough QC properly conceded that the defendants’ other witnesses were doing their best to assist the court with an accurate recollection. I agree. As they were giving evidence over nine years after the event, total accuracy is not to be expected. I bear in mind the passage of time when considering the evidence.

[28]I had reports from each of the experts and joint statements from experts of like disciplines. All the experts except the defendants’ neuroradiologist, Dr Butler, gave oral evidence. There was no material disagreement between the neuroradiologists. I note that their joint statement was not available when the other experts had their joint meetings. Some of the other expert opinions evolved in light of the agreement between the neuroradiologists that the pattern of damage is consistent with HHE syndrome. Further, some views did shift a little after the experts had heard other evidence in the case. This meant that the parties’ cases were refined during the course of trial. I am grateful to Counsel on both sides for drawing the evidence together in their well-focused written submissions, which I have considered in detail.

[29]I should also add that I have been considerably assisted in the detailed evidential analysis that this case requires by the provision of a full transcript of the oral evidence. As Counsel noted at the time, the transcribers did a very good job. Of course, no transcript can fully replicate the oral evidence and I must also draw on the assessment I made during the trial of the way evidence was given.

The facts

[30]Having made those initial observations about the evidence, I turn to my findings of fact based on my assessment of that evidence.

[31]Having had her surgery on 13 November 2008, NAX had been quite well and was progressing as expected until 17 November. That afternoon, she seemed a little unwell, but her mother was not unduly concerned and was happy to leave the hospital with CD to go to buy a gift for NAX. While KAX and CD were away, NAX deteriorated. KAX was cross-examined at some length about her recollection of what then happened. I am not entirely sure why it was thought necessary or appropriate to challenge quite so many aspects of her evidence. It was perfectly clear, in my judgment, that KAX was truthful and was doing her best to give an accurate account. She said, and I accept, that the traumatic events were “vivid” in her mind. There are bound to be inaccuracies in her recollection, but I accept that she remembers key events better than anyone.

[32]I unreservedly reject the suggestion that KAX had failed to give NAX her anti-epilepsy medication on occasions because she did not want to wake her. This is actually of no causative relevance to the case. However, it is likely to have been hurtful to KAX. I am sorry if the trial process and some of the submissions made on the defendants’ behalf have caused her any additional distress. I am certain that KAX has always been a caring, responsible mother who has acted in NAX’s best interests throughout. She is an intelligent woman who has cooperated with medical staff. The dignified way she dealt with her complaint and the claim is very much to her credit.

[33]Having made those general observations, I will not set out in detail every point that the parties made about the factual evidence. I have taken account of all the submissions and now simply summarise the findings I have made.

[34]I accept that KAX was called by CS and urged to return to the hospital as NAX’s condition had deteriorated. Precisely how many calls there may have been and exactly what was said is not important. KAX understood she needed to get back quickly and had the distressing experience of having to negotiate the London traffic to reach her sick child. She gave a very clear account of arriving back and NAX saying “Mum, I’m cold, please hug me.” KAX knew from experience that NAX was about to have a fit and asked for the nurses to be called. Shortly afterwards, NAX did indeed begin fitting. KAX believes that this happened shortly after 19.00.

[35]The medical notes record that at 19.00 NAX began shivering and was found to have a temperature of 39 C. She was given paracetamol, IV fluids were recommended and a doctor was called. Dr Meena Raj, paediatric registrar, attended at 19.30, followed shortly afterwards by Dr Matthew Tait, the on-call neurosurgical registrar. A nursing record made at 19.30 notes that NAX had twitching of the left eyebrow, followed by twitching of the right hand for 6 minutes and then started fitting. It is said that this “lasted totally 14 min”. A nurse gave diazepam per rectum at 19.25. A further note indicates that this was given 7 minutes into the seizures. It is not wholly clear whether the total 14 minutes includes the twitching. Taking account of KAX’s evidence, I think it is more likely that the twitching started at 19.12 and progressed to full tonic-clonic seizures around 19.18.

[36]I accept diazepam was given at 19.25 although KAX may not have observed this. She recalls that she was very worried. I accept that KAX’s perception was that there was a delay in administering diazepam. She recalls another parent offering her a diazepam tablet and the nurse declining to give it because it could only be given by a doctor. Far from this seeming an “unlikely account” as the defendants suggest, it all had the ring of truth. It seems to me that the likelihood is that KAX perceived the seriousness of the situation a little before the nurses. That is not surprising. She knew her daughter better than the nurses and could see the signs of onset of seizures. As Dr Darowski, the expert intensivist called by the defendants, said when giving evidence “the first rule of paediatrics is ‘listen to mum’”. However, I also accept that the nurses responded reasonably promptly, and that the administration of diazepam occurred in a sufficiently timely fashion.

[37]Dr Raj found NAX to be unresponsive. She gave intra-venous Lorazepam three minutes after the dose of diazepam. According to her note (made at 20.15), the seizures settled soon after the Lorazepam was given but NAX developed mild respiratory depression. The on-call anaesthetist and neurosurgical registrar were called. Dr Raj did not note NAX’s temperature, but a nurse recorded it to be 41.1 C at 19.35. At 19.50, the nursing record notes “fits settling”.

[38]KAX told me that the fits continued. She clarified that she was not suggesting that there was one continuous, unremitting seizure. There were times when the fits settled but then they would start again. She accepted that they were probably stopped temporarily but then continued. She explained that she became “very scared” as this was not the pattern of fitting that the family was used to. The medical records corroborate that KAX and CD were very anxious and distressed at the time. That does not fit with the suggestion of a single seizure that had settled with medication. The nurse’s account that the fits were “settling” rather than “settled” is also indicative of some ongoing seizure activity.

[39]Having reviewed all the evidence, I consider the best account of NAX’s seizure activity that night is to be found in a note made by Dr Elaine Hughes, an experienced consultant neurologist, following a discussion with KAX at 21.00 on 18 November 2008. The material parts read:

“In the evening became febrile and shivering ++ Subsequently around 7.30 pm 17.11.08 began to seizure. Multiple seizures but Mum very clear that whilst motor component improved she was continuing to seize (eyes) until phenytoin given at 10.45 pm. Subsequently further breakthrough seizures – additional phenytoin & midazolam infusion. (Also had initially rectal diazepam, then lorazepam iv without Mum noting complete seizure control). Subsequently brief seizures when midazolam reduced but otherwise nil and EEG does not show any subclinical seizures.”

That account was given when events were fresh in KAX’s mind. The outcome was not yet known, and hindsight is unlikely to have played a part. Further, I have no doubt KAX was being careful to give a full and accurate account to assist in her daughter’s diagnosis and treatment. The account seems broadly consistent with the notes. As I read Dr Hughes’ note, she did not doubt what KAX said and was recording it on the basis that it was likely to be accurate. Dr Parker, the expert neurologist called by the claimant (who has particular experience of HHE syndrome) told me that this account was very similar to accounts he had heard from parents in other HHE cases.

[40]Dr Tait attended after 19.30, probably around 19.40. He found NAX to be deeply unconscious (GCS 3/15) but noted that the seizures had been terminated. He thought NAX should go to HDU. The PICU registrar was to review with regard to her airway. He advised a CT scan if she was not waking by 23.00. Dr Tait should have discussed with Mr Chandler. Indeed, he noted that he had done by writing “D/W CLC” and then placing a tick in a box next to that. Despite that apparently clear entry, Dr Tait accepted he may not have made the call. He conceded he may have intended to call Mr Chandler but not actually done so. Dr Tait went off shift at 20.00. He was under some pressure to get back for handover. He regarded his role as being “first response”. He did not stay as long with NAX, as he would have done if not going off shift, and expected the next shift to take over. When he saw NAX, it appeared that the seizures had been controlled by the medical team. He was not aware of how high her temperature was or that she was tachycardic. He accepted that had he known of these factors, it would have influenced his clinical thinking. However, he still would not have ordered a CT scan immediately and thinks it was reasonable to wait a while. In giving evidence, he demonstrated the balance between the advantages of having a CT scan and the potential disadvantages, including the likelihood of intubation being required so impairing the observation of whether NAX was coming out of coma.

[41]I find that Dr Tait did not call Mr Chandler. Mr (then Dr) Zebian who was then a junior doctor in the neurosurgical team, attended NAX at 22.00. He did call Mr Chandler. I accept KAX’s evidence that she had been asking for Mr Chandler to be called before that and that when Dr Zebian did contact him she could hear Mr Chandler shouting down the phone. She spoke to Mr Chandler, who was demanding to know why he had not been called earlier. Mr Zebian had a “weak memory” that Mr Chandler was surprised when he called him. Mr Chandler suggested that he might have forgotten that he had been called earlier by Dr Tait at the time Dr Zebian called him (3 hours later). It seems to me that this was wholly unrealistic. Mr Chandler was highly critical of other junior doctors in his letter. He claimed that his team had not been contacted. He was very embarrassed about the letter. I think perhaps his rather unrealistic evidence on this point was a misguided attempt to support Dr Tait, probably when he no longer has a clear recollection either way. However, I am satisfied that there was no call to Mr Chandler before 22.00. I am also satisfied that Mr Chandler did say to KAX, or at least gave her the impression, that the outcome would have been different if he had been involved earlier. However, that was a somewhat unwise impressionistic response from him rather than one based upon a proper analysis of what had actually been done or not done.

[42]Dr Chieza, the on-call anaesthetic registrar, arrived at 20.00. He noted that NAX was post-ictal. He had been asked to review her airway. He decided that she did not need to be intubated at that time but indicated he would be happy to review if she deteriorated. I note that she had a Guedel airway in situ at the time. This is a simple device (adjunct) used to protect the patient’s airway. The Guedel is usually only tolerated by an unconscious patient; a conscious patient will usually cough it up.

[43]Sometime after that, Dr Baatjes arrived. This was in response to the referral to HDU. She went to assess NAX to see whether she needed to be moved to HDU. Dr D’Silva was the consultant responsible for the paediatric intensive care and high dependency unit that night. I accept her evidence that many referrals are made to HDU and that not all the patients referred need to move to the unit. There are limited places and a natural pressure on resources and the consultants in charge must use the resource appropriately. The intensivists are the experts and they assess each referral to see what the child needs. When the referral was first made, HDU was full but a bed was available in PICU. If NAX was assessed as needing care on the HDU she could have moved there. It may have been necessary to transfer another patient into PICU but that could have been accommodated. However, a clinical decision was taken that NAX did not need to move to HDU after Dr Baatjes assessed her. The reasons given in the notes were that the airway was patent, breathing was maintained and there were no further neurological issues or seizures.

[44]This was discussed with KAX and CD. They were not happy. They wanted NAX to go to HDU. I thought Dr D’Silva was impressive when explaining the reasoning behind NAX staying on the ward at that time. In any event, it is accepted that NAX was receiving care at a similar level to HDU. Dr Baatjes stayed on the ward to be on hand for NAX and she was undergoing observations every 15 minutes. The paediatric intensivist experts agree that what matters is not the patient’s physical location but the level of care she was receiving. Arguably NAX was receiving an enhanced level of care compared to standard HDU care.

[45]In the hour between 19.30 and 20.30 it seems that NAX was seen by four doctors – Dr Raj, Dr Tait, Dr Cheiza and Dr Baatjes. Each of them came from a different team. It is not clear who was taking overall responsibility for NAX. She was a very sick little girl. She was four days post-neurosurgery; she had a very high temperature and was tachycardic; she had experienced focal seizures and was deeply unconscious. Her parents were expressing considerable anxiety for her. They were not getting reassurance that she was in safe hands. Dr Raj, the first doctor on the scene and the general paediatrician, appears to have regarded her duty as being discharged by making referrals to others. While NAX remained on the ward, she was a neurosurgical patient. The intensivists regarded her as the neurosurgeons’ responsibility. Mr Chandler seems to have confirmed this through his anger at not being contacted sooner (he did not then realise Dr Tait had been involved). Dr Tait attended only briefly and, for whatever reason, failed to call Mr Chandler. However, his expectation was that she would go to HDU and come under that team’s care. Dr Cheiza considered intubation only in the context of whether NAX was maintaining her airway. Dr Baatjes appears to have been on hand for NAX but without assuming full responsibility, as she had not then become an HDU patient.

[46]None of the doctors prescribed antibiotics when they should have done. The impression is that none of them really had full control of the situation. This fits with the evidence of the distress KAX and CD were in. They were frustrated that not enough was being done for NAX. They certainly were not reassured that, although NAX was very poorly, she was receiving all the care she needed. That, in my judgment, represents a failing in the system. I believe this accords with Mr Chandler’s letter and his reference to “serious issues” which “have still not been addressed within Kings”. I also consider that it ties in with the view expressed in his statement that “the care should have been better”.

[47]If Mr Chandler had been contacted, as he should have been, around 20.00, he would have been involved in the decision making. I find that he would not have insisted that NAX go to HDU at that time, even had he been given all the available information about her. I accept his evidence that he would have regarded it reasonable to wait to see if she recovered but that if she had further seizures or a downturn in her consciousness he would have wanted her to be transferred. I am quite certain he would not have required a CT scan. His very firm view was that the benefits of performing a scan did not outweigh the risks and the results would not have contributed to NAX’s management in any way. I will have to come back to consider whether that was a permissible approach but factually it is very clear that Mr Chandler would not have wanted a scan.

[48]By 20.15, NAX’s GCS had risen and was recorded as being 7. The charts used to record GCS used to be on a scale up to 14 but more recently a scale out of 15 has been used. Both scales are used in the notes but that is not significant. The nursing notes show that NAX’s GCS plateaued at 7. At 21.00, NAX was described by Dr Baatjes as being post-ictal. Then, some time before 22.00, she had a further seizure. This lasted a few minutes and self-resolved. Either in response to the seizure or because KXA and CD insisted on someone from the neurosurgical team being called, or perhaps through a combination of those events, Dr Zebian attended.

[49]Dr Zebian was a more junior doctor. He was a ST3 grade. However, he appears to have taken a far more pro-active approach. I recognise that he came in after a further seizure and that Mr Chandler told me that he would have regarded another seizure as a trigger for escalating care. Dr Zebian gave KXA greater confidence. His note appears thorough. He recorded a GCS of 9/15. He explained he is a little obsessive about observations, including recording pupil size. Her pupils were dilated but were reactive and he was not particularly concerned. I consider that Dr Zebian was careful and through and that his observations can be relied on. He accepted that his score of 9 might not have represented a real improvement from that of 7 obtained by the nursing staff as it might just reflect the difference between a nurse and a neurosurgeon. However, there had been a significant improvement in consciousness since Dr Tait saw NAX and I am satisfied that the GCS of 9 recorded by Dr Zebian at 22.00, shortly after the further seizure, is accurate.

[50]Dr Zebian contacted Mr Chandler. He was told NAX must go to HDU and that her care should be discussed with paediatric neurology. Dr Zebian therefore contacted Dr Hughes. She advised as to the administration of drugs, including loading with phenytoin, and that NAX should have an EEG in the morning.

[51]Dr D’Silva accepted that NAX should be transferred to HDU and made arrangements for this. She had to transfer another patient from HDU to PICU to make room for NAX. Mr McCullough QC suggests that there was delay of about 2 hours in transferring NAX to HDU. However, I do not think this is open to criticism. NAX was accepted for transfer and was moved when the space was available. In the meantime, she was managed as an HDU patient on the ward. That was appropriate.

[52]I find that there was a third seizure, observed by Nurse Phillips, sometime between 22.00 and 22.45, when the loading dose of phenytoin was given intravenously. During the administration of the phenytoin, NAX had a fourth seizure. On the basis of KAX’s account to Dr Hughes the next day, this was when the seizures were first controlled, although there were further breakthrough seizures later.

[53]At 23.00, NAX coughed up her Guedel airway and was able to maintain her own airway thereafter. Antibiotics were eventually given at midnight, around the time NAX was transferred to HDU.

[54]The records suggest that NAX suffered two further seizures when on HDU. The first appears to have started at 00.20 on 18 November. Another dose of phenytoin was given then. Unfortunately, NAX had an idiosyncratic reaction to the second dose of phenytoin. This caused a rare condition called “purple glove syndrome” which led ultimately to NAX losing two fingers.

[55]At 01.15, Dr Baatjes started to make a note but did not complete it. She recorded that she had a discussion with Dr Hughes in which she informed her that NAX had “ongoing seizures”. Dr Zebian then made a note at 01.30 recording that NAX had had two further seizures on HDU. The medical records are far from perfect around the time of NAX’s transfer to HDU. Doing the best that I can, I find on a balance of probabilities that she had a further seizure shortly before 01.15 when Dr Baatjes recorded “ongoing seizures”. This was NAX’s last seizure. Dr Zebian’s plan at 01.30, following Dr Hughes’ and Mr Chandler’s advice, was not to perform a scan as things stand but to proceed to give midazolam and to intubate if seizures were uncontrolled. Dr D’Silva also discussed NAX with Dr Hughes at 01.30. She recorded concern about subclinical seizures and seizure control. (It is not clear from the note who raised the concern, whether it was Dr D’Silva’s concern about which she sought advice or whether Dr Hughes raised the concern when contacted.) Dr Hughes advised midazolam if there were further seizures.

[56]Further seizures did not occur after 01.30 but there was then some concern about NAX’s respiratory status. In response to this, she was intubated and ventilated and was transferred from HDU to PICU. The precise time at which intubation took place is not totally clear from the records. The parties proceeded at trial on the basis that intubation was undertaken at 02.50. Mr McCullough QC’s written closing submissions state “Intubation finally occurred at 02.50”. The parties provided a helpful chronology cross-referencing the medical records, from which it appears that 02.50 was the time that NAX was first given drugs (including Thiopentone, a strong anticonvulsant) with a view to intubation and that the insertion of the tube occurred some time later. However, nothing turns on this. There is no suggestion that the process was not carried out properly once the decision to intubate had been made or that anything done or not done after 02.50 has contributed to the outcome.

[57]It follows that I do not need to deal with the facts in any detail after that time. NAX remained in PICU until 25 November. A CT scan was performed on 23 November. She was extubated on 24 November and established right sided hemiplegia was noted on examination the following day. Her hand remained purple. It became blistered and ultimately NAX lost two fingers. She could not undergo surgical amputation due to her general condition and KAX describes the trauma of a finger falling off onto the floor after her discharge from hospital. NAX was discharged from the hospital in January 2009. Her neurological condition was very much worse than before her admission. In dealing only very briefly with the outcome, I do not minimise the awfulness of the situation. However, that is not the focus of this part of the case and for present purposes it is the period up to NAX’s intubation and admission to PICU that is of relevance.

Breach of duty

[58]The claimant’s case on breach of duty was set out at paragraph 59 of the Particulars of Claim. The alleged breaches were helpfully summarised by Mr McCullough QC in his opening note as follows:

“(1) Delay in Dr Raj’s attendance after being called at the onset of fitting. (2) Failing to take the following steps in the light of C’s high and rising temperature (41.1°C at 19.35 and 41.7°C) and prolonged seizure: (i) treat with broad spectrum antibiotics; (ii) admit to the HDU for a CT scan; and (iii) intubate her. (3) Planning to postpone active management, as identified under (i) to (iii), until 23.00 hours. (4) By Dr Tait failing to contact Mr Chandler immediately, and delaying until after 22.00 hours (5) Generally failing to suspect a serious problem unfolding, 4 days after major brain surgery, and in the face of very high temperatures, status epilepticus, and deteriorating condition. (6) Wrongly assuming NAX was experiencing a simple episode of seizures.”

[59]The defendants admitted that antibiotics should have been administered earlier and that the failure to so represented a breach of duty. However, the case was opened to me on the basis that it was unlikely that this breach would be found to have had a major causative impact. This followed the experts’ joint statements. The neurologists, Dr Parker and Professor Gupta, agreed that antibiotics would have “resulted in some reduction of the severity of the septic process”, but “in isolation would probably not have had significant enough impact on all the deleterious processes” to alter the outcome. The claimant was invited by the defendant to concede that no case on causation was pursued in relation to the delay in administering antibiotics. Correctly, in my judgment, that concession was not made. It was entirely proper to review this point having regard to the totality of the evidence heard at trial.

[60]The reality is, as effectively conceded by Mr McCullough QC, the claim will not succeed solely based on the delay in administering antibiotics. However, this admitted breach is part of the overall picture. The claimant maintains that prompt administration of antibiotics in conjunction with earlier intubation (and the drug regime associated with that) would have had a material effect on outcome. Further, the negligent failure to give antibiotics promptly is relied upon as part of a general lack of care. It is therefore a relevant consideration, although not directly causative of any injury.

[61]The claimant’s case at trial crystallised around two main allegations, which were said to be causally significant: i) Failure to arrange a CT scan; ii) Delay in intubating and sedating for neurological protection. These allegations overlap. It is accepted that a CT scan would not itself have shown anything that would have altered the course of treatment. However, it is the claimant’s case that she would have had to have been intubated and sedated to undergo the scan and that the drugs used to sedate her would have stopped her fitting. It is also apparent from the expert evidence that a decision to perform a CT scan would call for consideration of the likelihood of intubation and sedation being required.

[62]In addition to these main allegations, the claimant alleges more general failings in her care on the night of 17 – 18 November 2008.

[63]As I have already noted, Mr Chandler said in his statement served within these proceedings:

“I stand by my comments that the care should have been better and there was a delay in administering intravenous antibiotics.”

In the witness box, he was reluctant to accept failings going beyond the delayed administration of antibiotics. However, the wording of the statement is clear and deliberate. NAX’s care should have been better and there was a delay in administering antibiotics.

[64]I have already identified that nobody appeared to be in overall control, certainly up until 22.00. NAX had been seen by four doctors before Dr Zebian attended at 22.00. No one had prescribed antibiotics. Neither Dr Tait or Dr Chieza noted NAX’s extreme pyrexia or tachycardia. I have found that Mr Chandler was not called before 22.00. Neurological advice from Dr Hughes was also delayed until this time. ‘Fit charts’ as prescribed by the defendants’ protocol were not completed by the nursing staff. There are other respects in which the medical records are incomplete, for example the note by Dr Baatjes at 01.30 which just stops part way through. Even after Dr Zebian attended, there was a further delay of about two hours before antibiotics were administered.

[65]Dr Whitely, the expert intensivist called by the claimant, observed that what struck him when listening to the evidence of the defendants’ doctors was that “everybody who saw her seemed to have one bit of information or have one particular interest in the case, but nobody actually put it altogether.” Even before he said this, the thought had occurred to me that there appeared to have been a lack of “joined up thinking”.

[66]I will not set out any fuller analysis of the more general failings alleged since they do not directly give rise to a case that can be advanced on causation. However, I do find that Mr Chandler was right to state that NAX’s care “should have been better”.

[67]Proper care in the period up to 22.00 would have ensured that antibiotics were given, and that Mr Chandler was fully informed of NAX’s condition and asked for advice.

CT scan

[68]Although I deal with the need for a CT scan under a separate heading, I stress that it cannot be considered in isolation and I have not done that. Having heard all the expert evidence, it is clear to me that there are a range of opinions as to how NAX’s condition on the night of 17 – 18 November 2008 should have been best managed. Her situation called for a multi-disciplinary approach and weighing of the overlapping benefits and risks of performing a CT scan and intubating and sedating. Different doctors would have different viewpoints. Considering whether to perform a CT scan also involves considering how the patient can be made safe for transfer and while in the scanner. It is clear that these are not easy considerations.

[69]NAX did not undergo a CT scan until 23 November 2008. This was on the advice of Mr Chandler. That was not an oversight but represented a positive decision by him that she did not require a CT scan earlier. He was asked about this. He was adamant that a CT scan was not required at any stage during the night of 17 – 18 November. In part, his evidence relied on his knowledge of the hospital facilities and the fact that arranging a CT scan would have involved moving NAX down several floors and to a different wing. He said that he thought the benefit of doing a scan at that stage was “zero” and that he could not justify moving NAX to another part of the hospital for one. He insisted that the results of a CT scan would not have assisted in the plan to manage NAX at that stage and that taking her to the scanner may well have been deleterious.

[70]Dr Tait had recorded a plan for “CT scan if not waking by 23.00”. Mr Chandler agreed that he would probably have advised a scan if NAX remained in a deep coma at that time. However, her GCS had improved by then. Mr Chandler had been contacted before 23.00 and his views on a CT scan had superseded Dr Tait’s plan.

[71]In their joint statement, the expert neurosurgeons, Professor Hayward and Mr Mallucci agreed that a CT scan should have been undertaken earlier than happened. They disagreed as to when. Professor Hayward considered that NAX’s condition was such that a scan was mandated at around 20.00. Mr Mallucci took a different view. He thought that a scan should have taken place once the child had been intubated and ventilated for clinical reasons.

[72]There was a live issue as to whether NAX would have required intubation and ventilation in order for the scan to take place safely, had she not already been ventilated for clinical reasons. The CT scan is only relevant causally if it would have required NAX to be intubated and sedated using the same drugs as were eventually used, since it is claimed this is what stopped her seizures. The CT scan itself would have had no impact on the outcome. I heard evidence that if the intention was to wake NAX up after the scan, it may be that she would have been less heavily sedated. In reality, because of the way the evidence developed, I do not need to decide what drugs would have been used if intubating and sedating for the purpose of a CT scan.

[73]The views of both experts were somewhat modified at trial compared to their written positions. It was interesting to see how each of the neurosurgical experts addressed this issue. It was apparent to me that deciding when to do a CT scan was not straightforward and involved a balance between risks and benefits. Professor Hayward plainly would have done a scan at an early stage. However, he conceded in cross-examination that the view of his respected colleague, Mr Mallucci, was rational. Mr Mallucci was clear that he would not have ordered a scan before NAX was intubated but would have done so afterwards. However, in the witness box, he explained that he did not think Mr Chandler had been negligent in not requiring a scan at that stage. He said this:

“I don’t think there was a breach of duty by not doing a CT scan. I would have done a CT scan and – but I think Professor Hayward touched on this before: neurosurgeons despite their slightly confident appearance are slightly insecure and we do – when we do – when we have an intubated patient or we have something changed, we like to reassure ourselves. So we’re partly treating ourselves, not the patient there necessarily.”

He then went on to say:

“actually, I think it was reasonable for him not to perform a scan, particularly in the scenario with these really acute medical problems developing on days two and three.”

He then went on to say:

[74]Mr McCullough QC is critical of what he describes as Mr Mallucci’s attempt to “row back” from what he had agreed in the joint statement. I understand that concern. However, having listened to all the evidence and seen how the evidential picture evolved, I believe that Mr Mallucci was entitled to reach that view.

[75]Although I have raised some criticisms of Mr Chandler, I was nevertheless impressed with his evidence on this issue. He was confident that the CT scan would not tell him anything he did not already know and therefore would not alter NAX’s treatment and management. He was in fact right about that. Of course, hindsight cannot be relied upon in assessing the reasonableness of Mr Chandler’s decision at the time. Mr Mallucci described Mr Chandler’s approach as “brave”. There may be a fine line between being brave and being reckless. Mr McCullough QC suggests that the decision not to do a CT scan until much later is more properly characterised as recklessness.

[76]Having heard Mr Chandler and the expert opinion, I am not persuaded that he was reckless in not ordering a CT scan earlier. Whether he was acting in accordance with a practice accepted as proper by a responsible body of medical opinion in not requiring a CT scan even after NAX was intubated is a more finely balanced issue. Were that the crux of the case, it would require further analysis, including detailed consideration of how Mr Mallucci’s evidence evolved.

[77]I am, however, entirely satisfied on all the evidence that I heard that not performing a CT scan before the child had been ventilated for therapeutic reasons does accord with a practice accepted as proper by a responsible body of medical opinion. There were risks and benefits to be weighed and more than one view as to how that balance should be resolved. Mr Mallucci himself would not have arranged a scan before the decision was taken to intubate for other reasons. Professor Hayward disagreed but could see the rationale behind Mr Mallucci’s opinion. Applying Bolam and Bolitho, I am confident that not arranging a CT scan before NAX had been intubated was not a breach of duty.

[78]That is sufficient to dispose of this issue since any delay in ordering a CT scan after intubation had occurred cannot have been causative of any damage.

[79]Although a multi-disciplinary decision, Mr Chandler was the decision maker in relation to the timing of the scan and accordingly the neurosurgeons were the key experts on this issue. However, in reaching my conclusions, I have also taken account of the expert evidence of the intensivists. I note Dr Darowski’s agreement in the joint statement with Dr Tait’s plan to do a CT scan at 23.00 if not waking. This is relied upon by the claimant, although Dr Darowski subsequently clarified that he did not think a CT scan was required at 23.00 given the improvement in NAX’s GCS.

(a) ) Dr Dawoski said:

“there was no indication for a CT scan either following the first seizure, or subsequently up until the time that the claimant was intubated at around 02.50 hours.”

Dr Darowski therefore adds to the body of opinion that would regard it as proper not to perform a scan before the child had already been ventilated.

[80]For completeness, I observe that, had it been established that there was a negligent delay in arranging a CT scan, an argument might have been pursued about the scope of the defendants’ duty in relation to the scan, given that the scan would have shown nothing of relevance and the claimant would have been relying on coincidental benefits of intubating and ventilating for the scan. The defendants chose not to pursue this argument and I believe that was a sensible decision on the facts of this case to avoid adding yet further complexity.

[81]While not conceding the point, Mr McCullough QC appears to have recognised in his closing submissions that there was expert support for the CT scan being delayed until NAX was already intubated. Therefore, the real thrust of the claimant’s case by the end of trial was the allegation that she should have been intubated earlier for protective reasons.

Protective intubation and sedation

[82]The key experts on this issue were the intensivists, Dr Whiteley and Dr Darowski. Both had relevant paediatric experience. Dr Whiteley had trained under Dr Darowski. Dr Whiteley had commenced a series of paediatric early warning scores which Dr Darowski subsequently continued and updated. Dr Darowski also wrote and implemented guidelines for the management of children with status epilepticus in district general hospitals.

[83]Dr Darowski’s report attached the NICE Guidelines for “Prolonged or repeated seizures and convulsive status epilepticus” and the chapter entitled “The Convulsing Child” from the Advanced Paediatric Life Support handbook. There is no dispute that intubation is the final step in the algorithm for managing epileptic fits.

[84]I note that the claim was not put on the basis that the stage had been reached where NAX should have been intubated to directly manage her fits. That accords with the evidence. Dr Hughes was consulted about management of the seizures but did not recommend intubation as part of the plan for seizure control. Professor Gupta confirmed that it was his view that there was no need for earlier intubation and sedation from a neurological perspective, although Dr Parker thought intubation should have occurred by 22.30.

[85]Dr Whiteley’s opinion was that NAX should have been intubated shortly after 20.00. In his report, he said intubation was required “to protect her airway, provide optimal neuro-protective ventilation and oxygenation, and to facilitate an urgent CT scan of her head.” He accepted in cross-examination that his report appeared to concentrate on the need to intubate for a CT scan. However, I consider it unfair to describe his approach as a late development, as the defendants do. It was clear from his report that the need for a CT scan was not the only reason for intubating at 20.00. He stressed the need to join all the facts together. The context included that NAX was four days post-surgery; she had an extremely high temperature; had had a focal fit and was now obtunded. She had a Guedel airway in situ and was requiring repeated suction of secretions and oxygen. He would have been very concerned about her condition. He would have wanted a CT scan that would, in reality, require intubation anyway. He expressly accepted that there was a balance to be struck between the benefits and risks of intubating. However, his clear view was that NAX should have been intubated and ventilated “to make her safe”.

[86]In the joint statement, Dr Whiteley expressed the opinion that intubation was indicated following the first seizure at 20.00 but if not carried out then became mandatory following the second seizure between 21.00 and 22.00. Mr Whiteley was prepared to concede that the “actual line in the sand” as to when intubation had to occur was 22.00. By that time, he said, the position had become even more acute and there had been no sustained recovery after the initial rise in GCS. According to the nursing records, NAX remained non-responsive for most of the evening.

[87]In relation to the position at 20.00, the defendants rely upon the attendance of Dr Chieza and his decision that it was not necessary to intubate then. It is said that he was not cross-examined on the basis that his decision was negligent and that, if that was the claimant’s case, he should have been given the opportunity to answer the allegation. However, it is clear that Dr Chieza understood that his role was limited to looking at the security of the airway at that time. Dr Whiteley’s opinion was based upon wider considerations. I am not therefore critical of the way in which this part of the case was conducted on the claimant’s side. However, the reality of Dr Whiteley’s concession is that breach of duty cannot be maintained on the Bolam test prior to 22.00. i) In his report, Dr Darowski said that there were several cogent reasons for not intubating NAX during the evening of 17 November. His opinion was that the risk/benefit balance was in favour of not intubating her until she showed signs of respiratory failure. He modified his position in the joint statement, concluding that “intubation and ventilation were not required until 00.40 on 18th November when the claimant suffered a prolonged (20 minutes) predominantly right sided focal seizure.”

[88]In the joint statement the expert intensivists recorded:

“We are agreed that intubation should have occurred sooner to reduce the risk of neurological injury but disagree as to the required timing of intubation.”

Dr Whiteley maintained intubation was mandatory at 22.00. Dr Darowski said it was not necessary until 00.40.

[89]What is clear from all the evidence I heard is that a decision to intubate involves balancing the benefits and disadvantages. Both Dr Whiteley and Dr Darowski highlighted the need for an intensivist to look at the whole picture. There is no doubt that NAX was very sick and Dr Whiteley would unquestionably have chosen to intubate. However, the downside of intubation was a reduced ability to conduct neurological observations. It was not suggested that it is impossible to neurologically assess a sedated patient. Where intubation is required, the doctors may lighten the sedation to carry out observations. However, assessment becomes more difficult. Mr Mallucci explained that a neurosurgeon would rather their patient is not intubated. He said:

“from a neurosurgeon’s perspective we have handed over that patient when they’re intubated, we can’t really assess them very well.”

Dr Darowski explained that there is a reluctance to intubate “because you lose that window into the brain”. He did not accept that a patient needed to be intubated just because she remained unconscious, saying:

“We are all used to looking after patients who have GCS’s of 3, or slightly more, during recovery from anaesthesia. And … protecting the airway doesn’t necessarily mean intubating it. It means ensuring the patient is in a recovery position, that the airway is open, that they have adequate suction and that there is somebody who is looking after the patient.”

[90]Dr D’Silva stated that there was no indication for intubation until 01.30 when this was immediately undertaken. In fact, this does not accord with the records which suggest intubation did not start until 02.50. Dr D’Silva maintained her position in the witness box. Mr De Navarro QC suggests that it should have been specifically put to Dr D’Silva that intubation should have taken place at 22.00 or 00.40 if that was the claimants’ case. However, I believe the claimant’s case was sufficiently put and Dr D’Silva did not accept there had been any inappropriate delay in intubating.

[91]The defendants’ closing submissions seek to get around the fact that Dr Darowski agreed that intubation should have taken place earlier. On the other hand, the claimant suggests that his suggestion that intubation became mandatory at 00.40 but not earlier defies logic.

[92]I was generally impressed by Dr Darowski’s evidence. He is a vastly experienced and reputable expert, having been involved in the guidelines for managing convulsions in children. I thought that he gave his evidence in a measured way. He was prepared to make concessions and to reflect on questions put to him. It is fair to say that, when cross-examined about his opinion that intubation should have occurred at 00.40, Dr Darowski’s evidence became a little confused. However, when listening to the evidence being given, I did not regard that as being Dr Darowski’s fault. This series of questions were put fairly rapidly. Mr McCullough QC was keen to identify inconsistency in his evidence. However, I was not convinced that Dr Darowski had been given a full and fair opportunity to consider the relevant records and to clarify his answers before inconsistency was alleged. When given that opportunity, he maintained his view that intubation should have taken place at 00.40.

[93]The records were not entirely clear around the time that respiratory depression developed and NAX was intubated. Dr Darowski’s view was that it was inappropriate to wait until respiratory depression had occurred before intubating. He explained that giving Midazolam would inevitably lead to respiratory depression so that intubation should have occurred once it was decided to give that drug. His interpretation of the records as to when Midazolam was in fact given may not be right. The decision to give that drug may have occurred later than he thought. However, I consider that it would be inappropriate to allow the defendants to go behind Dr Darowski’s clear opinion that intubation was mandatory at 00.40 by relying upon inadequacies in their own notes.

[94]I do accept that the need for intubation around 00.40 assumed greater importance as an issue during the course of the trial than may have appeared at first. Mr De Navarro QC suggests that the case had been prepared on the basis that the critical period was that up to midnight. That may be so. However, it is not entirely surprising that the issues will evolve in a complicated multi-faceted case such as this. I must, of course, do the best that I can to resolve the issues on the totality of the evidence presented to me.

[95]I am unable to accept the claimant’s submission that Dr Darowski’s opinion that it was reasonable not to intubate before 00.40 (but that intubation became mandatory at that time) defies logic. He clearly explained the balancing required and indicated that he thought that there was an “equipoise” between continuing to give more anti-convulsants without intubating or following the “intubation arm of management” up until that point. Quite some time was taken in exploring the extent to which NAX’s condition had improved during the evening. I accept that after an initial recovery from a GCS of 3 to one of 7 or 8, she appeared to plateau but equally I am satisfied that Dr Darowski took the pattern of recovery into account. After the further fit, and in the expectation of Midazalom being required and inevitably leading to respiratory depression, the balance tipped and intubation should have occurred. If Dr Darowski has erred in his interpretation of the records as to when it was decided to give Midazalom, he has assessed that time as being earlier rather than later than it in fact was. I have explained why I do not believe the defendants are entitled to rely on that to escape Dr Darowski’s conclusion that intubation should have occurred at 00.40. However, I am satisfied that Dr Darowski’s opinion that it was reasonable not to intubate before 00.40 is logically defensible and indeed correct. I remind myself of his role in writing the guidelines for the management of convulsions. His opinion carries considerable weight.

[96]Applying Bolam and Bolitho, I find that the defendants 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.

Causation

[97]In light of my findings on breach of duty, what must be considered is whether the failure to intubate at 00.40 (alone, or in conjunction with the failure to give antibiotics) caused or materially contributed to the Claimant’s injuries.

[98]My finding as to the time at which intubation should have occurred means that I can deal very briefly with causation in relation to the left-hand injury. In short, intubation at 00.40 would not have avoided the need for the second dose of phenytoin. Therefore, the hand injury was not caused or materially contributed to by the breach of duty which I have found to be proved.

[99]On the evidence before me, it seems likely that had NAX been intubated for protective reasons by 22.00, the same drug regime would have been used at that time and that she would probably not then have had the second dose of phenytoin. Although some uncertainty was raised by the family’s evidence that NAX may have had a reaction to the first dose, on balance I would have been likely to find that she would not have suffered the hand injury had she avoided the second dose of phenytoin. However, this has become academic. As Mr McCullough QC properly accepted in his closing submissions, it cannot be said that intubation at 00.40 would have prevented the hand injury.

[100]The position is not as simple in relation to the claimant’s brain injury.

[101]The expert neuroradiologists, Dr Nelson and Dr Butler agreed that imaging of the claimant’s brain showed a pattern of damage consistent with a diagnosis of hemi-convulsion, hemiparesis, epilepsy (HHE) syndrome.

[102]HHE syndrome is very rare. As a result, even the most experienced neurologists have seen few cases and the research studies are also limited.

[103]Dr Nelson was called by the claimant. He told me that HHE syndrome is a “very uncommon outcome of even severe seizures such as status epilepticus”. He was asked about his view that the damage was the result of prolonged seizure activity on 17 – 18 November. Dr Nelson said:

“Yes, I have to modify that to a degree. It was pointed out that clinically NAX had a series of seizure events. When clinically assessed, she wasn’t in a relentless period of hours of seizure activity and, for that reason, I went back to the literature and did some floating around …Realising that we didn’t have, in this case a history of relentless status epilepticus lasting several hours, I went back to my literature that I collected on this syndrome and was relieved to find, in terms of appropriate diagnosis in this case, that trivial seizures and minor seizures anteceding the full recognition of the HHE syndrome has been documented. ”

Dr Nelson did not produce the literature to which he had referred.

[104]The neurology experts, Dr Parker and Professor Gupta, had both seen cases of HHE. I was particularly impressed by Dr Parker’s expertise. He is a paediatric neurologist based at Addenbrookes Hospital and has led their epilepsy service for 17 or 18 years. He also heads the tuberous sclerosis service. He believed that he had seen all the cases of HHE in the Eastern region in the last 18 years. That amounted to 5 to 7 cases. He had seen 2 or 3 cases before going to Cambridge. I am satisfied that he is one of the leading experts in this field and that the small number of cases he has seen reflects the rarity of the condition. I reject the defendants’ suggestion that Dr Parker had traits of “the professional “advocate” expert”. I had no doubt that he was seeking to assist the court by providing a genuine and balanced opinion.

[105]Professor Gupta is undoubtedly an experienced and eminent neurologist, although he has less direct experience of HHE syndrome. He told me that he had seen two cases during his career. It is notable that he did not raise HHE as a possible diagnosis in his report.

[106]Mr De Navarro QC was very critical of the way that Dr Parker’s evidence developed. In his report, Dr Parker dealt with causation only on the basis that intubation should have occurred at 20.00. In that event, he said that the HHE process would have been dramatically reduced and although NAX may have received a mild brain injury she would not have experienced a significant increase in disability. In the joint statement, Dr Parker considered an alternative position if intubation had occurred at 22.30. Then, he said, the HHE process would have been reduced; NAX may still have suffered brain injury but there would have been a less significant increase in her disability needs. In the witness box, he dealt with the position if intubation had occurred at 00.40 in response to a question from Mr McCullough. He replied:

“I think you are saying with two hours ten minutes less of the deleterious process, on the assumption that it was finished with strong sedative drugs with strong anti-epileptic effect. I think she – that would have reduced the extent of her subsequent long-term disability.”

He said that he was unable to quantify that further.

[107]It was not ideal that this evidence only emerged in the witness box without anything being reduced into writing. The point arose out of the intensivists’ joint statement and Dr Darowski’s concession that intubation should have occurred at 00.40. Both sides might have been expected to pick this up and deal with causation on this alternative basis. However, it was far from the claimant’s primary case and perhaps only assumed real importance during the trial. Mr De Navarro QC suggests it was a last-minute view, emerging during a lunchtime discussion after the claimant’s primary case had weakened, if not been altogether destroyed. Mr McCullough QC frankly accepted that he should have given notice that Dr Parker would give this evidence. He apologised for that. I do not think any criticism need attach to him or to Dr Parker. They were responding to the unfolding case as all the evidence was heard. It was a sensible question to ask. The defendants were not prejudiced in any way in responding to it. I do, however, bear in mind that Dr Parker’s view about the outcome had intubation occurred at 00.40 had not been subject to the same careful analysis and cross-referencing of the evidence as it might have been had he dealt with it in his report or even the joint statement. I must analyse his opinion by reference to the evidence and the findings of fact that I have made.

[108]I have found that NAX was not fitting continuously throughout the night. It is agreed that she did not have continuous, convulsive status epilepticus from 20.00. There were a series of intermittent, prolonged seizures. In between, NAX was not fully recovering. She could therefore be described as being in status epilepticus. I accept Dr Parker’s evidence that the eye deviation described by KAX the next day was a sign of ongoing epileptic activity. This, however, on KAX’s account was brought under control around 22.45. There were further seizures after that time. After 00.40, there was probably at least one more seizure, which I have estimated to have occurred around 01.15. There may have been another. There were no further seizures after 01.30 until after the time that NAX was in fact intubated.

[109]I am assuming, in the claimant’s favour, that had she been intubated at 00.40, she would not have suffered further fits between then and the time she was in fact intubated. I do note that she did later suffer some breakthrough seizures even after intubation. Further, I do not accept that it was intubation that in fact stopped the fits in NAX’s case. She had not suffered further seizures after 01.30, although intubation did not occur until 02.50 at the earliest. However, it seems likely that earlier intubation would have had the effect of controlling seizures earlier than happened with the drug regime actually used.

[110]Even allowing for the benefit of any doubt caused by evidential gaps of the defendants’ making, the claimant’s case at its strongest is that if intubation had occurred at 00.40, there would have been no further seizures after that time, reducing the relevant timeframe by at most 50 minutes (and perhaps closer to 35 minutes). That 50 minutes does not represent a period of continuous seizure activity.

[111]This must be contrasted with what Dr Parker said in the witness box, namely that he was assuming two hours ten minutes less of the deleterious process. I am afraid that assumption simply does not fit with the findings I have made.

[112]In his closing submissions, Mr McCullough accepted that there would be an evidential lacuna if I found that the additional period of seizure activity was less than an hour. That must be right.

[113]The literature I have seen makes it clear that the pathogenesis of HHE remains poorly understood. Most cases are idiopathic. Professor Gupta was adamant that it was not possible to say that the duration of seizures was the cause of NAX’s HHE syndrome. He thought that was speculative. Nobody can predict who is going to develop HHE or why. Dr Nelson had identified that there are cases reported in the literature of HHE syndrome developing after trivial or minor seizures.

[114]I did consider that Dr Parker had the greater expertise in relation to HHE syndrome. I am prepared to accept the view he expressed in the joint statement, based upon his experience, that HHE is more likely to develop in children with prolonged seizure activity than in cases where the seizure activity has been much shorter. I think it worth noting what he said: “although the exact causes of the pathogenesis of HHE syndrome, and their interactions are not clear, we do know that the factors outlined by RG below contribute.* In terms of duration of epileptic activity, some children with exceptionally long periods do not develop HHE and other children with shorter periods of seizure activity do. However, it is clear that in the population of children who develop HHE, the hyperthermia / seizure activity is much more prolonged, and similar to that described in this case. AP is of the opinion that if HHE does not occur with short periods of seizure activity, if the seizure activity in this case had been dramatically shortened, it would have been unlikely to have occurred.” (*The “factors outlined by RG” included prolonged seizure activity, hyperthermia, inflammation and blood brain barrier damage.)

[115]On the findings I have made, it cannot be said that seizure activity would have been “dramatically shortened” had intubation taken place at 00.40.

[116]Taking the evidence as a whole and even though I am according considerable respect to Dr Parker’s expertise, I do not believe that his opinion (expressed very late in the case) that intubation at 00.40 would have made a material difference can be sustained. The assumptions on which he relied for that opinion, are not supported by a proper analysis of the evidence and do not tie in with my findings of fact.

[117]I note that Dr Parker said in his report:

“In most other cases I have seen with HHE, we have debated whether earlier intervention could have occurred and if so whether it would have altered the outcome. In most of those cases, the reduction in the length of the injurious process would have been minor, and hence any possible improvement in outcome less certain.”

When giving evidence, he told me that when he has seen HHE, junior doctors have asked whether they should have intervened earlier and have felt very bad about the outcome. He tells them that it is likely the child had been in status epilepticus for a long period but HHE is a very rare sequela of status epilepticus (so rare it does not feature in the training of a SHO). Dr Nelson’s evidence also pointed to the difficulty in predicting when HHE will occur. It seems to me, ultimately, that it is more likely that this was another unfortunate case of HHE which cannot be directly linked to fault on the doctors’ part.

[118]Despite Mr McCullough QC’s admirable submissions on causation, he was ultimately bound to concede that a reduction of as little as 50 minutes left a lacuna in the claimant’s case. Having reviewed all the available evidence, I am bound to find that the claimant has not established that any injury was caused by the breach of duty that I have found proved.

Conclusions

[119]I have found that 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. The defendants 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.

[120]Although the claimant 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.

[121]It follows that I must dismiss this claim.

[122]I do not do so lightly. 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.

[123]I have, of course, recognised the importance of this case to both parties. It was a complex matter with overlapping issues and the need to hear from experts from several disciplines. I recognise that the claim was bound to present challenges in presentation. I have sought to identify any evidential gaps for which the defendants are responsible and to give the claimant the benefit of the doubt where they arise. My analysis above identifies some assumptions that have been made in her favour.

[124]Having reached my conclusions, I have stepped back and asked whether the detailed analysis of the evidence has led me into the trap of failing to join everything together, as is said against the junior doctors involved. I have reminded myself that this is a case in which there have been failings in the child’s care and where she has had a catastrophic outcome. I have taken time to review all the evidence carefully, assisted by the full transcripts. However, even adopting a broader viewpoint, I am unable to say that any breach on the defendants’ part materially contributed to NAX’s injuries.

[125]I recognise that my decision will be very disappointing to NAX’s family and particularly to KAX, who could not possibly have done more for her daughter. I appreciate that she is likely to continue to believe that the hospital could have done better and that the outcome may well have been different with better care.

[126]Despite finding that liability is not established, I believe that the defendants owe KAX an apology. I do not believe her concerns were adequately managed at the time. It is extremely unfortunate for a parent in this situation to feel that their child is not receiving the best care. This was then compounded by an inadequate investigation. No Adverse Incident Report was raised at the time, other than in relation to the error whereby the EVD was left off for 5 hours, which was never thought to have caused any harm. Dr D’Silva accepted that an Adverse Incident should have been registered in relation to the serious brain injury suffered by NAX. The complaint properly raised by KAX was not fully investigated, despite the response taking seven months. Suggestions for further investigations were not followed up. The letter of response was described by Mr McCullough QC as a “white-wash”, given the identified concerns about the delay in prescribing antibiotics and the criticisms made by Mr Chandler. I do not think this is an unfair characterisation. KAX was entitled to have her complaint dealt with fully, properly and promptly. That did not happen. I cannot order the defendants to provide an apology. I do not know whether KAX would even want one at this stage. However, I suggest that the defendants should at least consider the possibility.

[127]I am grateful to all Counsel for their considerable assistance with this complex matter and to the solicitors for their efforts in preparation. I particularly wish to note the considerable skill and care with which Mr McCullough QC conducted the claim on behalf of NAX. I do not believe he could have done any more than he did.

[128]In all the circumstances, the claim is dismissed.

Postscript

[129]Having circulated my judgment in draft, Mr McCullough QC submitted a request for clarification of an aspect of my reasoning on the issue of causation. I attach my response as an annex to this judgment.

ANNEX

[1]This is a response to the claimant’s request for clarification dated 16 May 2018.

[2]Mr McCullough QC referred to the finding at paragraph 56 that “Further seizures did not occur after 01.30 but there was then some concern about NAX’s respiratory status.” He asked for clarification of the reasoning and evidential basis for this and set out the following specific questions: i) Is it correct (as the Claimant understands) that the finding that there were no further seizure[s] after 01.30 includes a finding that after that time there was(a) no subtle fitting activity that was unrecorded;

(b) no further subclinical (i.e. clinically undetectable, but still part of a damaging process) seizures;

(d) accordingly, that the ‘deleterious process’ identified by Dr Parker stopped at that point? ii) If so, what is the reasoning and evidential basis for that finding? iii) Does the Court find that there [was] any clinical recovery after 01.30 before intubation at about 02.50? If so, what was the extent of this, and the evidential basis of such a finding? iv) What was [the] clinical cause of the deterioration that led to the concern about respiratory status (and hence intubation at about 02.50), and the evidential basis for that cause?

[3]I am happy to provide clarification. In order to do so properly, I must put the questions and my answers into context. The questions now posed were not identified during the trial as issues for me to determine. The claimant’s case on causation based upon failure to intubate at 00.40 developed at a very late stage when Dr Parker was in the witness box. It had not been foreshadowed and as a result was not explored with any of the witnesses, other than Professor Gupta who was still to give his evidence.

[4]In order to succeed, the claimant would have had to prove, on a balance of probabilities, that failure to intubate at 00.40 made a material contribution to her brain injury.

[5]InWilliams v Bermuda Hospitals Board

[2016] AC 888

, the injury was caused by a single known agent, namely sepsis, which developed incrementally. The breach of duty resulted in the process, involving steady reduction in the sufficiency of the supply of oxygen to the heart, continuing for 2 hours 20 minutes longer than it should have done. The Board concluded that it could be inferred on a balance of probabilities that the negligence materially contributed to the process and therefore contributed to the injury.

[6]This case is different as there was considerable uncertainty as to the aetiology of HHE syndrome. That is very clear from the papers Dr Parker attached to his report, which I carefully considered. When reaching my conclusions, I reviewed all of Dr Parker’s evidence extremely carefully. I considered how it emerged; how he gave his evidence and the extent to which his final opinion was consistent with the medical literature. I did have the sense that Dr Parker was thinking on his feet with regard to some of the issues that had not been considered in his report or the joint statement. It appeared to me that he was developing his hypothesis about the timing of damage for the first time while in the witness box. I note that question 8 on the agenda for his meeting with Professor Gupta asked about “the likely timing and mechanism that best explains the Claimant’s post-operative neurological deficits”. Dr Parker did not include any hypothesis on timing beyond referring back to earlier answers, including the response I have noted at paragraph 115. That response appears to fit with the literature he produced whereas his more detailed consideration of timings is not supported by the literature. While respecting Dr Parker’s expertise, a hypothesis based upon anecdotal evidence and involving a small sample cannot supersede proper peer-reviewed studies.

[7]For the avoidance of doubt, I did not prefer Dr Parker’s evidence and reject Professor Gupta’s. I put all the evidence before me into the balance. Professor Gupta told me that “no one actually knows what the exact mechanism is”. He highlighted that there was no reference to “a specific duration of seizure that can cause HHE” in the literature cited by Dr Parker. That was a fair interpretation of the literature. I also had the evidence of Dr Nelson which I have cited at paragraph 104.

[8]When Dr Parker was first asked for his opinion on outcome if intubation had occurred at 00.40, he gave the answer I have set out at paragraph 107. That made it clear that he was assuming that the “deleterious process” was stopped by the drugs used for intubation. That assumption was not however underpinned by evidence.

[9]I assumed (paragraph 110) that had NAX been intubated at 00.40 her seizures would have been stopped then. I accept that could be maintained on the evidence. Whether those drugs would have stopped all sub-clinical seizure activity was not explored, certainly not in any detail. I assume that is the case. However, I did not accept intubation in fact stopped the fits. That was not a finding I could make on the evidence before me. I can see no evidential basis for saying that seizure activity was not controlled before intubation. There were no further fits after 01.30 and I have no other evidence of ongoing seizure activity. I can see no proper basis to infer that there was ongoing seizure activity until 02.50.

[10]Dr Parker did initially say that it was likely that epileptic activity was continuing all the way from 19.15 to 02.50 when NAX had Thiopentone and Midazolam. However, when it was then put to him that there were no further seizures from 01.30 to 02.50 and that it may be that cessation of the seizures was due to the anti-epileptic drugs given, he said, “I think that is possible.” (Tr/4/108-9). He then revised his opinion to say that the deleterious process ran “at least until the last witnessed convulsive seizures were, but probably a little bit longer than that.” I found there were no convulsive seizures between 01.30 and 02.50 and that the last one was probably around 01.15. He did not expand on what “a little bit longer” meant.

[11]Dr Darowski said that it was impossible to say whether the seizures stopped because of the cumulative effects of the anti-convulsants she had or because she was finally intubated (Tr/3/210-1).

[12]Professor Gupta said that it was very difficult to say what the duration of seizure activity was in NAX’s case. He also said that the seizures appear to have been managed appropriately and there was no suggestion that there was significant ongoing sub-clinical seizure activity (Tr/4/165).

[13]I found that the best account of the seizure activity was that in the note made by Dr Hughes (see paragraph 39). That drew a distinction between the period up to 22.45 when there were signs of ongoing seizures and that afterwards when she referred to “breakthrough seizures”. I accept that does not exclude sub-clinical activity but neither does it provide evidence that such activity was occurring.

[14]The literature does not define the “deleterious process” to which Dr Parker referred. It would not be proper to infer that the process was ongoing after 01.30 from the nature of the injury when the papers suggest there is no real way of knowing how long it took for the damage to be done. I note also that the neurosurgeons agreed at paragraph 9 of their joint statement that it was difficult to pin down the exact timing and evolution of the damage.

[15]Against that background and remembering that the claimant bears the burden of proving causation on the balance of probabilities, I answer the questions posed as follows: i) There was no evidential basis for a finding that there was further seizure activity after 01.30. The evidence I heard, taken as a whole, did not establish that a “damaging process” continued after 01.30. The claimant may have been considered to be in status epilepticus beyond 01.30 because she had not recovered. However, Dr Parker’s evidence suggests that the term “status epilepticus” does not have a universal definition. Further, the evidence before me did not persuade me that being in status epilepticus (in the sense of not recovering rather than having ongoing ictal activity) meant that the process causing the damage was continuing. On a balance of probabilities, the deleterious process had ceased by 01.30. ii) I consider that this question risks reversing the burden of proof. The claimant did not establish on the basis of all the evidence before me that the deleterious process continued after 01.30. There was no direct evidence that it was continuing. Dr Parker’s evidence in the end was that it continued “a little bit longer” than the last witnessed convulsion. That evidence was vague. Having regard to all the evidence, including the literature and the other expert opinions, I was unable to infer that a damaging process was continuing beyond 01.30. iii) I did not make a finding that there was any clinical recovery between 01.30 and 02.50. My only finding about this period was that there were no further seizures. iv) This issue was not one addressed at trial and I consider it inappropriate to make a finding now. The claimant was septic, pyrexic (her temperature was recorded as 40 C at 9am on 18 November) and she was systematically very unwell. If the implication is that I should have found that ongoing seizure activity led to reduced respiratory effort and the need for intubation, I reject this as being unsupported by the evidence. No evidence was presented that continuing seizure activity caused NAX to deteriorate after 01.30.