XM (By His Father and Litigation Friend FM) v Leicestershire Partnership NHS Trust [2020] EWHC 3102 (QB)

Success at trial in clinical negligence claim for 8-year-old client

 

This was a nine-day liability trial which began in November 2019, was adjourned, and concluded in November 2020.  The second half of the trial was conducted remotely in light of Covid restrictions.

 

The claim- for an eight-year-old boy with a catastrophic brain injury- was successful in respect of each of three main allegations.

 

An anonymity order is in place to protect the child’s interests.

 

The case raises interesting legal points, as well as matters relevant to public health.

 

 

Summary

Our client was born with rare, benign brain tumour called a choroid plexus papilloma.  The tumour caused over production of cerebrospinal fluid which meant that in the early months of life his head began to grow abnormally fast.  To begin with, because babies’ heads are elastic, the skull stretched to accommodate the extra fluid, and the boy showed no symptoms of illness.

 

By the time the rapid head growth was noticed, the boy was 6 months old.  His head circumference was ‘off the chart’.  Cerebrospinal fluid was drained, and the tumour was successfully removed, but the long period of excessive pressure within the boy’s head had caused permanent catastrophic brain damage, and he cannot walk, speak or even see.

 

There were three allegations of negligence.

 

Firstly, when the boy’s head was measured at 6 weeks old it had expanded from the 25th to the 50th centile over a 4-week period. This was not normal and potentially very significant, but the health visitor negligently interpreted it as reassuring, ‘steady’ growth.  The head circumference should have been remeasured 2-4 weeks later.

 

At around this age the boy should have had an additional health check with his GP.  This was missed by accident – the only appointment missed by his parents for any of their three children.

 

The boy saw a health visitor again aged 4 months.  The health visitor would have known from the red book that the boy had missed his GP check, but she did not tell the parents to have the boy seen by the GP.  This was the second negligent mistake.

 

By the time the boy was 4 months old his head was over the 99th centile when his body weight was below the 15th centile.  He would have looked, when undressed for a medical examination, out of proportion.  The health visitor missed this, and no-one raised the alarm; the third allegation of negligence.

 

In the judgment dated 23rd November 2020 His Honour Judge Stewart found in favour of the boy and his family on all three arguments.  The boy will receive compensation to fund a support package for life.

 

 

 

The judgment raises three interesting legal points.

 

Firstly, it is thought to be the first successful case involving negligence by a health visitor.

 

Secondly, it is a reminder to clinical negligence lawyers that in order to count as ‘reasonable’, medical practice must withstand logical analysis.  In this case the failure to understand that growth over a short period meant growth at an excessive rate, meant that the failure later to remeasure the head was illogical.

 

Thirdly, ‘reasonable’ care is defined according to the task being performed, not the job title of the person performing it.  Health visitors and GPs both interpret head measurements and the law applies a single standard of care.  The outcome should not vary according to who carries out the measurement.

 

In addition, the case gives rise to public health issues: –

 

For Health Visitors;

 

  1. It emphasises the importance of the rate of growth of head circumference, rather than simply the finite amount of growth, is potentially being misunderstood when health visitors are carrying out their measurements.

 

  1. It highlights that the 6 to 8-week health check is an important part of the statutory framework created by the Healthy Child Programme.   It can and should be carried out (using alternate examination techniques if necessary) in older children if the 6 to 8-week window has been missed.

 

  1. It emphasises the role of the lead health visitor in co-ordinating delivery of the entire Healthy Child Programme rather than just those aspects of it which are personally delivered by the health visitor.

 

  1. Underpinning these observations in this case there was a failure to carry out any early objective investigation of a very serious adverse outcome.  An internal investigation had been considered and then parked in this case, which meant that children have been exposed to the same risks for at least a further 8 years.

 

For General Practitioners;

 

  1. The judgment highlights the absence of any feedback loop to identify children who have missed their 6 to 8-week health check by mistake, rather than through parental choice.  The lack of a system-wide checking system unnecessarily exposes children to risks including: –

 

  1. Delay in diagnosis of hip dislocation;
  2. Delay in identifying undescended testicles which increases the risk of infertility and cancer;
  3. Potentially delay in identifying other serious underlying conditions; in this case a brain tumour.

 

 

 

 

 

 

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