MJF v University Hospitals Birmingham NHS Foundation Trust

In a clinical negligence claim, the standard for inserting a PEG tube required the device to be fitted without undue tension and with sufficient play. The amount of play was a matter of clinical feel, not a mechanically prescribed measurement.

The claimant had to prove that the breach probably caused the injury. The exclusion of unpleaded alternative causal theories did not reverse that burden or create a res ipsa loquitur case, although the absence of a plausible alternative cause could be considered with the evidence as a whole. The court also held that causation could differ between distinct aspects of a claimant’s future deterioration.

The claimant, who had cerebral palsy, autism and epilepsy, alleged that the defendant negligently inserted a PEG feeding tube with excessive tension on 22 March 2016. The tube subsequently caused gastric necrosis, peritonitis, sepsis and hypoxic brain injury.

Liability was tried separately from damages. The issues were breach of duty, whether excessive tension caused the necrosis and resulting complications, and the extent to which the complications accelerated pre-existing deterioration in mobility, continence, oral intake and airway protection.

1. Standard of care. Applying Bolam and Bolitho, the PEG had to be fitted without excessive tension and with sufficient play to permit movement and rotation. The appropriate amount was a matter of feel rather than a fixed measurement.
2. Breach. The contemporaneous record and expert evidence supported a finding that the uninflated skin-to-gastric-lumen distance was approximately 2.5 cm. Dr Andrew’s evidence that sufficient play had been left was unreliable in material respects. The claimant therefore proved that the PEG had been fitted with excessive tension.
3. Causation and pleadings. The defendant was not permitted to rely on new alternative causal theories first advanced during the evidence and closing submissions. Their late introduction caused forensic prejudice because the experts had not addressed them jointly and the claimant had no proper opportunity to investigate them. Applying Gregg v Scott and O’Connor, the claimant nevertheless retained the burden of proving causation on the balance of probabilities. The absence of a plausible alternative explanation was relevant but did not reverse that burden. Excessive tension was found to be the probable cause of the necrosis.
4. Extent of causation. The breach caused the loss of mobility, although the claimant would otherwise have retained assisted indoor ambulation until her mid-to-late fifties and required hoisting by about age 60. It accelerated complete incontinence and complete PEG feeding by six years. The defendant failed to prove that a tracheostomy would have been required in any event.
5. Disposition. The claimant proved liability. Judgment was entered against the defendant, subject to the findings limiting causation in respect of continence and oral intake.