By Pankaj Madan, Barrister, 12 King’s Bench Walk and Exchange Chambers.
Some cases fail because the facts are poor. Some fail because the medicine is against the claimant. This was not quite either of those. LXLP v St George’s University Hospitals NHS Foundation Trust [2026] EWHC 560 KB (Kimblin J) handed down on 13th March 2026, is a case where there were obvious concerns about the care, an admitted failure in treatment, a seriously injured child, and a family with every reason to feel that something had gone badly wrong. Yet the claim still failed. It failed because the court was not persuaded that the admitted failings probably caused the injury. That is what makes the decision worth reading carefully for those acting for claimants in clinical negligence work.
The broad outline is stark enough. The claimant’s mother attended hospital in April 2016 at 27 weeks plus 5 days gestation with leaking fluid. It was later agreed that there had been Preterm prelabour rupture of membranes (PPROM). It was also agreed that there were missed opportunities to offer and administer antibiotics between 26 April and 10 May 2016, and that there had been negligent omissions in relation to erythromycin. A vaginal swab showed GBS. Later sensitivity testing showed resistance to erythromycin and sensitivity to penicillin. No antibiotics were given until labour on 10 May. By then chorioamnionitis had developed in the 12 to 24 hours before delivery. The claimant was born at 29 plus 3 weeks and went on to suffer PVL and severe cerebral palsy.
At first sight, it is easy to see why the claim was brought with confidence. There was an admitted breach in relation to erythromycin. There was also local hospital guidance which supported the use of penicillin in the circumstances that arose. The hospital’s own Serious Incident Report recorded concerns, including that the mother had not been listened to. These are the features of a case that will understandably encourage solicitors and families alike to feel that liability ought to follow. But that was precisely where the problem began. The judgment is a sharp reminder that breach, even admitted breach, is only part of the story. In a complex clinical negligence claim, causation often remains the real battleground.
The claimant’s causation case had two limbs. The primary case was orthodox but for causation. Put shortly, the argument was that if erythromycin had been given, and if penicillin had been added once the GBS (Streptococcus) result and sensitivities were known, the mother would probably not have developed the chorioamnionitis that she did, or it would at least have been materially less severe, so that the fetal inflammatory response and the subsequent brain injury would have been avoided. The fallback was “material contribution”. The claimant argued that even if science could not show that the injury would probably have been avoided altogether, the negligent failure to provide antibiotics had made a more than minimal contribution to an indivisible injury.
The court was not persuaded by either route. On penicillin, the claimant had a superficially attractive point. The local hospital guidance said that penicillin should be offered if GBS was isolated in a conservatively managed PPROM case. The consultant responsible for the mother’s care had drafted that local guidance. It was not followed. In another case, that might have been a powerful starting point for breach. But the judge held that it did not establish negligence here. He preferred the national guidance and the defence obstetric evidence that national guidance represented the best available evidence as to reasonable practice. National guidance did not support giving penicillin before labour simply because of GBS colonisation. The local guidance therefore remained evidence, but no more than that. It did not have the force of law, and a failure to follow it did not automatically amount to negligence.
That part of the judgment is worth pausing over. Claimant lawyers can sometimes become understandably attracted to an internal policy point, particularly where it is clear, written down, and has not been followed. But local guidance is not a short cut to judgment. The court will still ask whether the defendant’s conduct was supported by a responsible body of opinion, and whether that opinion withstands logical analysis. In this case, the judge accepted that it did. The local guidance was not ignored as irrelevant, but it was not treated as decisive. For solicitors and counsel, and I include myself, the lesson is simple enough: plead policy points if they help, but do not mistake them for the legal test.
The harder blow to the claimant, though, came on causation. The court accepted that erythromycin is recommended in PPROM for good reason. It improves outcomes overall and is supported by the literature and national guidance. But the judge drew an important distinction between a treatment which is generally beneficial across a population and proof that the absence of that treatment probably caused the injury in the case before the court. That is a distinction claimant lawyers cannot afford to blur. A recommendation for treatment is not the same thing as evidence of causation.
The claimant ran into difficulty for a number of reasons. First, the court found that the evidence did not support a conclusion that erythromycin would probably have prolonged the pregnancy by more than about a week. Secondly, the judge accepted the defence evidence that a prolongation of about a week would not have prevented PVL in this claimant’s case. Thirdly, the microbiological picture was too uncertain. Chorioamnionitis was usually polymicrobial. The precise microbiological cause in this case was not known. GBS was significant, but it was not shown to be the sole cause, and suppressing one organism did not prove that the inflammatory process which caused the injury would have been avoided. Fourthly, the claimant’s own expert analysis really came no further than risk reduction. The court held that risk reduction was not enough. The claimant still had to prove, on the balance of probabilities, that the injury would probably have been avoided. She could not do so.
That reasoning is important well beyond this case. There is often a temptation in difficult medical claims to lean too heavily on epidemiology, guidelines, and the general proposition that an earlier or different intervention improves outcomes. Of course those matters are relevant. Sometimes they are central. But they do not answer the individualised causal question unless the expert evidence can bridge the gap between population data and the particular claimant. That bridge was not present here. The court was not willing to cross it by instinct or sympathy.
The same problem defeated the material contribution argument. The judge held that the claimant’s reliance on indivisible injury did not really fit her own case. The claimant was saying, in effect, that if bacterial load and inflammation had been reduced, the severity of the injury would have been reduced. That is not a neat indivisible injury analysis at all. More fundamentally, the evidence still did not establish that antibiotics would have reduced the severity of the PVL ( Periventricular leukomalacia) in this child.
PVL is the reduction in the white matter of the periventricular cortex, which is often “scarred” (gliosis). Cystic PVL (cPVL) refers to a specific appearance on ultrasound scanning of the brain in which cysts (or “holes”) are seen in the periventricular white matter. The cysts usually resolve over time leading to the later appearance of gliosis on MR imaging. Again, the claimant was left with the general proposition that antibiotics improve outcomes in PPROM, but not with a sufficiently secure evidential route to this claimant’s neurological outcome. For solicitors and counsel acting for claimants, there are some straightforward lessons here. The first is not to be seduced by the moral force of the case. Cases involving seriously injured children, anxious parents and admitted shortcomings in care understandably carry emotional weight. They should. But that can sometimes obscure the need for precision. The legal question remains the same: what exactly would the proper treatment have done, and why can it be said, on the balance of probabilities, that the injury would thereby have been avoided or materially lessened. If that cannot be answered clearly, the case is in danger no matter how troubling the background facts may be.
Secondly, expert evidence must grapple with the counterfactual in a disciplined way. It is not enough for an expert to explain the pathology or to say, as a matter of broad theory, that avoiding infection would have avoided injury. The expert needs to engage with timing, mechanism, microbiology, the likely period of any prolongation of pregnancy, and whether that period would have mattered in the individual case. This judgment shows the danger of expert evidence that is too high level, too general, or too willing to rely on broad statements about improved outcomes without confronting the specific hurdle of proof.
Thirdly, claimant solicitors should be careful about how they deploy guidelines. Guidelines are often valuable. They may support breach, expose systems failures, or help test expert logic. But they do not decide negligence and they certainly do not decide causation. This case is a good example of a judge reading the underlying literature and treating guidelines as part of the evidential landscape, not as an answer in themselves. That is how practitioners should approach them too. Finally, this case is a reminder that some claims fail not because nothing went wrong, but because the law demands proof of something more specific than wrongdoing. The judge plainly understood why the family had brought the claim. He expressly recognised that the mother felt she had not been listened to, and that after all these years the parents wanted an answer to the question what would have happened if things had been done properly. The court’s answer was that, on the evidence, the injury would have happened anyway. That is a hard conclusion, but it is one claimant lawyers need to keep in mind from the outset. In difficult clinical negligence cases, the greatest risk is often not in proving that care fell short, but in proving that the shortcoming made the difference. The Judge highly commended all Counsel involved in the case and rightly so.
About the author
Pankaj Madan is a Barrister specialising in catastrophic injury with a specialist interest in brain injury. He acts for both Claimants and Defendants. He is the author of leading texts on Subtle Brain Injury and Chronic Pain and a recent book on Catastrophic Brain Injury. He practises from Exchange Chambers and 12 King’s Bench Walk. He is President-Elect of the Royal Society of Medicine, Pain Section Council. He is Legal 500 PI Junior of the year 2025.
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This article is provided for general information purposes only. It does not constitute legal advice and should not be relied upon as such. No responsibility or liability is accepted for any loss or damage arising from reliance on the contents of this article. Readers are strongly advised to seek appropriate, legal advice before taking any action or making any decisions based on the information provided herein. The author and publisher expressly exclude all liability for actions taken or not taken in reliance on this article.
Clinical Negligence Law 