ST v Maidstone and Tunbridge Wells NHS Trust

In a clinical negligence claim, the claimant must prove that the injury fell within the risk against which the defendant’s duty was directed. The precise mechanism of injury need not have been foreseeable if the injury was of a foreseeable kind. A claim may also succeed on material contribution where medical science cannot establish the probability of injury without the negligent contribution, but can show that the contribution was more than negligible. Possibility or speculative expert opinion is insufficient. The court must assess the evidence objectively, including medical literature, laboratory findings and clinical observations.

The claimant, a child with congenital haematological conditions, suffered severe anaemia during an infection. The defendant admitted delay in transfusing him and the court found additional breaches in failing to administer planned intravenous fluids and in giving Frusemide during two transfusions. The claimant later suffered strokes and permanent brain damage.

The principal issue was causation. The claimant alleged that the breaches caused, or materially contributed to, thrombus, emboli and stroke through anaemia, haemolysis, hypoxia, hypocapnia and dehydration. The defendant contended that the primary cause was infection-related focal cerebral arteriopathy.

1. Scope of duty. The claim was not excluded by remoteness. A competent paediatrician should have foreseen that failure promptly to transfuse a severely anaemic child carried a risk of cardiac problems leading to brain injury. The fact that the injury occurred through strokes, rather than the precise mechanism contemplated, did not alter the kind of damage suffered. The court applied the reasoning in Hughes v Lord Advocate [1963] AC 837 and Stephen Loraine v Wirral University Teaching Hospital NHS Foundation Trust [2008] EWHC (QB), and distinguished Brown v Lewisham and North Southwark Health Authority [1999] Lloyds LR 110.
2. Breach. The failure to administer intravenous fluids amounted to a breach because the clinical note indicated that fluids should be given if uncrossmatched blood was not used, and that circumstance arose without any recorded change of plan. Giving Frusemide during both transfusions was also negligent because the claimant was dehydrated, there was no significant risk of fluid overload, and the drug tended to increase dehydration.
3. Primary causation. The claimant failed to establish that the breaches caused the thrombus, emboli or strokes. The court found that the primary cause was focal cerebral arteriopathy caused by the claimant’s recent upper respiratory infection. The claimant’s theories concerning anaemia, haemolysis, hypocapnia and moderate dehydration lacked convincing objective support. The evidence did not establish that those conditions caused arterial thrombus or emboli in a child with hereditary spherocytosis.
4. Material contribution. The court applied the approach in Bailey v Ministry of Defence [2008] EWCA Civ 883. Although cumulative or synergistic effects were possible, the evidence did not show that the breaches contributed more than negligibly to the strokes. The secondary case therefore also failed.
5. The claim was dismissed.