13/03/2026
Judgment was delivered today in a case raising important issues concerning the evidential value of local and national guidelines when considering the legal ‘breach of duty’ test, the correct application of ‘material contribution’ arguments in causation and the concept of ‘indivisible injury’ in infection cases.
It is entirely understandable that the parents of LXLP felt that they had good reason to claim damages from the Defendant Hospital Trust, who failed to prescribe routine antibiotics following a diagnosis of pre-term premature rupture of membranes (‘PPROM’) on 26 April 2016. The Trust admitted that the failure to prescribe erythromycin, in accordance with national guidelines, was a breach of duty. Furthermore, a few days later vaginal swab results confirmed the presence of Group B Streptococcus (‘GBS’) resistant to erythromycin and sensitive to penicillin. Although national guidance did not mandate the prescription of penicillin in the light of this finding, the Trust’s own local guidance recommended this be offered. LXLP’s mother was regularly monitored over the following days but received no antibiotics until labour on 10 May 2016, when guidance was followed and intrapartum antibiotics to prevent neonatal GBS infection were given.
LXLP was born at 29+3 weeks. Chorioamnionitis developed in the 12 to 24 hours prior to her delivery, leading to a fetal inflammatory response, funisitis. Sadly, as a result of this infection LXLP developed a severe brain injury, periventricular leukomalacia, and has cerebral palsy leading to a lifelong need for extensive care and support which would give rise to a multi-million pound claim for damages if liability could be established.
Despite the admitted shortcomings in antenatal care, the Trust defended the claim primarily on the basis that medical literature showed that the antibiotics which should have been prescribed would not have prevented the chorioamnionitis that unfortunately developed two weeks after PPROM, triggering LXLP’s brain injury. It was also contended, successfully, that the failure to adhere to local guidelines in relation to the administration of penicillin did not prove breach of duty. National RCOG guidelines suggested that antibiotic administration specifically for GBS colonisation was not necessary prior to labour and should not have been given ‘just in case’ in the absence of evidence of infection, clashing with local guidance.
Kimblin J considered that the omission of penicillin in addition to erythromycin in this case was not a breach of duty, applying the test in Bolam v Friern Hospital Management Committee [1957] 1WLR 582. This position was supported by a responsible body of medical opinion, evidenced by the clinical practice of the Defendant’s expert obstetrician Professor Gupta and contemporaneous national guidelines. He decided that this was also logical, given the good reasons to avoid disruption of bacteria in the genital tract set out by the Defendant’s expert microbiologist, Dr Gray, including ‘the dilemma of dealing with GBS resistance’ [151].
Given the finding that only the failure to prescribe erythromycin was a breach of duty, causation could not be established. A detailed review of the scientific analysis of the effects of antibiotics in PPROM, including an in depth consideration of the Cochrane review, revealed that the Claimant could not show that erythromycin would have prevented chorioamnionitis or prolonged labour by more than a week, on this second point Kimblin J relied on the evidence given by the Defendant’s neonatal expert Dr Rennie.
In the circumstances the answer to whether causation was proved on the balance of probabilities was that it was not, using the ‘but for’ test. The Claimant could not use ‘material contribution’ arguments in the light of that finding by way of a second bite at the cherry. ‘Material contribution’ only applies if medical science cannot determine causation on the conventional ‘but for’ test, in accordance with the decision in Zgonec-Rozej v Pereira [2025] EWCA Civ 171. Here it could, but not in the Claimant’s favour.
Nonetheless, in his judgment Kimblin J helpfully considered the application of the principle of ‘divisible’ and ‘indivisible’ injury. Material contribution arguments apply to cases of ‘indivisible injury’. Divisible injuries are ‘dose dependant’ with severity influenced by the amount of causative agent. In this claim the Claimant argued that LXLP would have suffered less injury to her brain if the polymicrobial bacterial load had been reduced, effectively pleading that the injury was divisible, so the burden was on the Claimant to prove that the ‘negligent’ contribution caused injury. She could not. The facts of this case are a clear illustration of the situation described in Williams v Bermuda Hospitals Board [2016] AC 888 at [40] :
“A claim will fail if the most that can be said is that the claimant’s injury is likely to have been caused by one or more of a number of disparate factors, one of which was attributable to a wrongful act or omission of the defendant: Wilsher v Essex Area Health Authority [1988] AC 1074. In such a case the claimant will not have shown as a matter of probability that the factor attributable to the defendant caused the injury or was one of two or more factors which operated cumulatively to cause it.”
Protocols and guidelines can conflict in their recommendations. Clinicians do not always adhere in their practice to guidance, though it is helpful if they can explain and record the clinical reasoning for any departure when doing so. Even if there is no clear decision to depart from guidance, as evidenced here, where antibiotics were omitted by mistake, this case underlines that a failure to comply with guidelines, local or national, is not in itself tantamount to a breach of duty. Kimblin J stated [139/ 140] “However, no element of guidance is a rule. If it were, it would no longer have the characteristics of guidance and the importance of medical observation, experience and care for the individual person in their particular circumstances would be diminished….. It would be an unfortunate backward step if those drafting important national medical guidance were influenced so that they changed the terms of their guidance through concern that a court may over-interpret their purpose and effect.”
This case also illustrates the need for a close analysis of the medical literature underpinning recommendations given to clinicians when examining legal grounds for proving causation. There are good reasons for prescribing erythromycin following PPROM, but preventing chorioamnionitis is not one of them. This is particularly relevant in a world where antibiotic resistance is increasing and a rationale divide can grow between the observations of microbiologists and routine clinical practice.
Jeremy Hyam KC represented the Defendant at trial.
If you would like to discuss this case (judgment here) in more detail, please contact Penelope Radcliffe the instructing solicitor acting on behalf of the Defendant.
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