NAX v King's College Hospital NHS Foundation Trust

In a clinical negligence claim, breach of duty and causation are separate questions. Under Bolam v Friern Hospital Management Committee and Bolitho v City and Hackney Health Authority, the court must assess whether the treatment accorded with a practice accepted as proper by a responsible body of medical opinion and whether that opinion had a logical basis.

Where competing medical approaches involve balancing risks and benefits, the existence of a respectable alternative view may prevent a finding of breach. The claimant must still prove that the breach caused or materially contributed to the injury. A breach may be established even though causation remains unproved.

NAX suffered severe brain damage and a hand injury after neurosurgery and prolonged or repeated seizures at the defendant hospital in November 2008. She alleged delayed antibiotics, failure to arrange an earlier CT scan, and delayed protective intubation and sedation.

The defendant admitted a breach arising from delayed antibiotics but disputed causation and the other alleged breaches. The court therefore determined breach of duty and causation at first instance, focusing on whether an earlier CT scan or intubation was required and whether the proven breach materially contributed to either injury.

1. The claim was dismissed. The claimant established breaches of duty but failed to prove that either breach caused or materially contributed to her injuries.

2. Applying Bolam v Friern Hospital Management Committee and Bolitho v City and Hackney Health Authority, the court held that not arranging a CT scan before NAX had been intubated for therapeutic reasons was supported by a responsible body of medical opinion with a logical basis. It was therefore not negligent. Any delay after intubation could not have caused the injury.

3. The evidence showed that intubation involved balancing the advantages of airway protection, seizure control and neurological protection against the disadvantage of making neurological assessment more difficult. The court accepted that the defendants’ practice was reasonable before 00.40 on 18 November 2008. Intubation became mandatory at 00.40, after a further seizure and in anticipation that midazolam would cause respiratory depression. Failure to intubate thereafter was a breach of duty.

4. The breach did not cause the hand injury because intubation at 00.40 would not have avoided the second dose of phenytoin. Nor did it cause the brain injury. On the evidence, earlier intubation could have reduced the relevant period of seizure activity by no more than about 50 minutes, and that period was not continuous. The evidence concerning the mechanism and timing of HHE syndrome was too uncertain to establish a material contribution.

5. The court considered the principles in Wisniewski v Central Manchester Health Authority. The defendant’s failure to call potentially relevant witnesses did not automatically justify an adverse inference, but evidential gaps caused by that failure were taken into account and the claimant was given the benefit of reasonable doubt.

6. In the annex, the court explained that the claimant bore the burden of proving that the damaging process continued after 01.30. There was no sufficient evidential basis for finding further seizure activity or a continuing damaging process after that time. The approach in Williams v Bermuda Hospitals Board was distinguishable because that case concerned a single known agent developing incrementally.