Ben Bradley succeeds in hypoxic brain injury claim arising from PEG procedure

Ben Bradley successfully represented the Claimant following a 6-day trial before HHJ Kelly (sitting as a High Court Judge) in Birmingham.

The trial revolved around a PEG Procedure performed by a Consultant Gastroenterologist at the Good Hope Hospital in Sutton Coldfield in 2016. The Claimant had a complex pre-existing medical history, having suffered congenital cerebral palsy from birth.

Following the index PEG procedure, she became unwell. It soon became apparent that her stomach wall had become necrotic at the site of the procedure. She developed four-quadrant peritonitis as a result. She remained in intensive care for 4 months following reparative surgery and suffered a serious deterioration in her function thereafter, resulting (amongst other things) in a significant increase in her care needs.

It was alleged that the PEG medical device had been fitted with too much tension between the 2 fixation devices which lay against the skin and the inside of her stomach respectively. This resulted in the necrosis and breakdown of the skin, leading to the peritonitis.

HHJ Kelly identified the following 3 issues to be determined at trial:

Standard of care and breach of duty

Issue 1: Whether the PEG was placed with too much tension between the internal and external bumpers in breach of the duty of care owed by the defendant.

Causation

Issue 2: If so, whether the tension prevented the supply of blood to the stomach wall causing the tissue to die resulting in peritonitis and sepsis.

Acceleration

Issue 3: If so, whether the admitted deterioration in the claimant’s condition is wholly caused by the negligence or whether it accelerated an inevitable deterioration in the claimant’s condition by a period of six years.

The trial judge broadly rejected the evidence of fact given by the Consultant Gastroenterologist for a number of detailed and comprehensive reasons given in the judgment (see, in particular: paras 131 to 141). She duly held that he had acted in breach of duty.

In respect of causation, the trial judge roundly rejected the Defendant’s attempts to introduce new, previously unpleaded theses late in the day. The analysis set out at paragraphs 163 to 170 may well be of general interest to clinical negligence practitioners. These paragraphs emphasise the importance and need for parties (particularly in clinical negligence proceedings) to set out cases clearly in the pleadings. The attempt (on the part of the Defendant), to introduce new theses as to how the necrosis might have occurred during the trial (in particularly, during cross-examination of the Claimant’s experts) put the Claimant at a distinct disadvantage, such that the judge held that such new theses could not be properly entertained by the Court. In any event, the judge rejected the new and alternative theses which were being postulated by the Defendant.

In respect of the issues relating to acceleration, acknowledging the nature of the Claimant’s pre-existing deficits, the Court held that some facets of function had been accelerated by a period of time. However, on analysis of the factual and expert evidence, the Court concluded that:

…the breach of duty caused:

1. A loss of mobility in circumstances where the claimant’s mobility would otherwise have continued to deteriorate but she would have maintained some indoor ambulation with assistance to her mid to late 50s but have required hoisting by the age of 60.
2. An acceleration of the claimant’s progression to complete incontinence (from an already low starting point) by 6 years.
3. An acceleration to complete feeding by PEG (from a position of a PEG already being required for some feeding) by 6 years.
4. The need for a tracheostomy.

A full copy of the judgment can be found here. The identity of the Claimant and the Litigation Friend has been protected by way of an anonymity Order.

Ben was instructed by Leanne Atkinson of Irwin Mitchell LLP, Birmingham.

Find out more

Ben Bradley is a specialist clinical negligence practitioner with a focus on complex liability issues and catastrophic injury work. He is due to be appointed as King’s Counsel on 24th March 2025, having been previously recommended by Chambers and Partners as a Band 1 leading junior.

To find out more about Ben, contact Paul Barton on +44 (0)207 427 4907 for a confidential discussion.

News 10 Feb, 2025