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Insights
09/09/2026
Kimblin J in LXLP (By her mother and litigation friend CYLP) v St. George’s University Hospitals NHS Foundation Trust [2026] EWHC 560 (KB):
“This case is about medical treatment of two patients: the Claimant and her mother. But it is also about the way in which they were treated as people, at a very significant time in their lives. Mother felt that she was not being listened to by the consultant who was in charge of her care, as the Serious Incident Report records. I trust that remains a lesson learnt at the Hospital. In the factual context of the Hospital not listening to Mother, having departed from its own guideline and given the very serious condition which the Claimant and her parents now live with, the parents’ wish to bring this claim is not surprising. Mother formed the understandable impression that medication was omitted which would have changed the outcome. The evidence which I have heard shows that is not in fact so, and for the reasons I have sought to explain, the claim must therefore be dismissed.”
In LXLP, the Claimant child brought a claim alleging that the negligence of the Defendant had resulted in her suffering brain damage and bilateral four-limb palsy. The case was medically complex and the issues were several. However, the basic facts were as follows.
The Claimant’s mother attended the Defendant hospital at 27 + 5 with leaking clear fluid. As far as the proceedings were concerned, it was agreed that at this point she had suffered a pre-term, pre-labour rupture of membranes (‘PPROM’). The risk of chorioamnionitis (inflammation of the foetal membranes) was discussed and she was admitted.
By two days post admission CRP levels had not been taken and the results of the high vaginal swab remained outstanding. At c. three days post-admission, the low vaginal swab had isolated GBS (Group B Strep). At c. four days post-admission the mother’s CRP was normal. Despite what was (eventually) agreed in the litigation, she was told by her consultant that her membranes had not broken and in spite of the GBS, she was discharged without antibiotics.
The next day the Claimant’s mother found that there was still leaking fluid, and so quite understandably called the hospital. She was informed that the high vaginal swab (previously outstanding) grew GBS and showed that it was resistant to Erythromycin and sensitive to Penicillin. However, on speaking to her consultant’s secretary she was informed that ‘the results did not change anything’. She was still not given any antibiotics.
Despite returning to the hospital three more times, the Claimant’s mother was told that there were no signs of infection and so she was turned away. She returned again at c. fifteen days post-admission and this time was admitted. She had been contracting for c. three hours and had reduced foetal movements. The Claimant was born at 29 + 3.
It was agreed that chorioamnionitis developed in the 12 to 24 hours prior to birth and that that had resulted in an ascending maternal amniotic infection. That infection had triggered pre-term labour and funisitis (a foetal inflammatory response in the umbilical cord), which in turn had led to periventricular leukomalacia (reduction of white matter in the periventricular cortex) and the severe disability with which the Claimant now suffers.
It was admitted (by way of an amended defence) that a 10-day course of Erythromycin should have been commenced from c. 1d post-admission.
However, the Claimant’s case (unsurprisingly – given the high vaginal swab results) went further, and alleged that as well as Erythromycin, Penicillin should have been commenced also.
Interestingly, that allegation was denied. It was interesting because the denial came in the face of (and was contradictory to) the Defendant’s own guidance, which recommended administering Penicillin in the above circumstances. What is more, and as was emphasised (perhaps unsurprisingly) by those representing the Claimant, the very consultant who was treating Mother was the author who had written that guidance.
In that scenario one would expect breach of duty to follow – and in many cases it may well do. However, in this case not only was breach of duty denied, but it was denied successfully. Why?
Whilst the local guidance was supportive of the Claimant’s case, the problem for her was that the national guidance was not. Indeed, the Judge took the view that the evidence from Cochrane, RCOG and/or NICE was either more nuanced, or in some instances actively unsupportive of the Claimant’s position. What that guidance showed was that Penicillin might be administered during labour (but not before), and in any event not as a ‘just in case’. Added to the fact that the Defendant’s expert (an experienced obstetrician) had never himself administered Erythromycin and Penicillin together, there was not enough evidence to say that the decision was a breach of duty.
Moving onto causation the Claimant put her case on the basis the orthodox ‘but for’ test, as well as on the basis of material contribution, saying that if ‘but for’ failed, it was because science could not demonstrate the precise contribution from each pathogen and that the injury was indivisible (see paragraph 35).
In contrast, the Defendant’s case was that this was an ordinary but for case and that material contribution was of no assistance.
The Judge found that it was clear from the literature (reviewing Cochrane, RCOG and NICE as well as numerous underlying studies) that there was a broad consensus that Erythromycin improves outcomes where there is PPROM. Indeed, there was good support for the conclusion that some antibiotics reduce infection. Similarly (and importantly) there was also good support that it would prolong pregnancy (which would in turn impact the level of PVL).
However, that evidence was ‘far from all one-way’. There were variabilities and uncertainties between cohorts and for different end points. Using varying endpoints (such as a high temperature) as a proxy for chorioamnionitis was a problem because often those proxies could occur in absence of that infection. None of the evidence supported a proposition that Erythromycin prevents chorioamnionitis specifically (although that was not the Claimant’s case). What it showed was simply that it had ‘a sufficient range of beneficial effects in a sufficient proportion of cases, with sufficient evidence of a lack of adverse effects, to warrant its use.’ (Paragraph 157). A recommendation, the Judge held, was not to be equated with causation.
So the literature was therefore at best equivocal and at worst unsupportive. What then of the expert evidence?
Whilst the Claimant’s microbiologist was supportive, the Judge held that her evidence amounted to saying that the administration of Erythromycin would reduce the risk of infection (which was true, in so far as it went) but the problem for the Claimant was that a reduction in risk was not to be equated with causation. In other words, less likely does not mean unlikely, and in this case there was a range of potential causes for infection and inflammation. The Claimant therefore faced a similar situation to that in Williams v Bermuda HB [2016] AC 888 and Wilsher v Essex Area HA [1988] AC 1074. i.e., there were numerous potential causes, and she could not prove that but for the breach the infection would not have occurred in any event, or that the lack of antibiotics contributed as a matter of fact.
The Judge was of the view that the Claimant could not prove ‘but for’ causation. He highlighted that there was consistent agreement between the obstetric experts that it was ‘not possible’ to determine whether chorioamnionitis would have been avoided, and that the exact microbiological cause of the chorioamnionitis was ‘not known’. He went on to find that he accepted the evidence of the Defendant’s microbiologist that prolongation of pregnancy for one week would not suffice to prevent the PVL, and that ‘the Claimant’s injury would have happened in any event’. (Paragraph 166).
Given his findings on but for causation (i.e., not just that there was a lack of proof, but that the evidence showed that the injury would have happened in any event), an analysis of material contribution did not arise (see paragraph 168). Furthermore, there was no evidence to show that the negligence was in fact even one of the competing causes.
Furthermore, even if material contribution did apply, this was not an indivisible injury. Indeed, the defining characteristic of a divisible injury is that it is ‘dose related’. The whole premise of the Claimant’s case was that antibiotics would have reduced the bacterial load, and therefore also the severity of the injjury. That was a paradigm example of a divisible injury.
However, even if it was an indivisible injury, it would be of little help to the Claimant because as per above, the question of whether or not there was an infection may be influenced by a multitude of factors, of which antibiotics was only one part. On the basis of the evidence it was not proven that the lack of antibiotics had contributed to the Claimant’s outcome.
As per the penultimate paragraph of the Judgment (cited at the beginning of this article), LXLP is a tragic case. On first blush (and indeed – even as the Judge acknowledged) there were clearly some very good grounds for bringing the claim. It is perhaps not surprising that permission for appeal has been sought (and at the time of writing remains pending). However, and subject to the outcomes of any appeal, for now the following may be worth reflecting on.
The role of guidelines
The local guidelines were rejected. Whilst, ‘this does not mean the local hospital guidance is wrong, nor does it mean that if the local were to be followed in preference to the national in another case, with some adverse effect, that would be a breach of duty.’ (Paragraph 147).
It is a truism that a Judge must consider all the evidence in the round.
However, there is perhaps an argument to say that Claimants are faced with a ‘heads I win tails you lose’ type argument from Defendants. Indeed, where Claimants do rely on national guidance, they are rebuffed by Defendants for trying to ‘convert’ that guidance into a national rule. However, when it is then the case (as it was here) that the Claimant is relying on local (not national) guidance, i.e., practice as it was being implemented ‘on the ground’, they may find that they are rebuffed by a submission to the effect that what needs to be followed is national guidance, not local.
Obviously that is to oversimplify the problem, but what is clear is that Claimants should not be complacent in thinking that support within the local guidance is a sure path to success.
Outcomes, risk and contribution
Proving that x/y/z would have led to a ‘positive’ or ‘favourable’ ‘outcome’ may not be enough. In this instance what the Court wanted to see was evidence that the treatment that should have been given would have avoided or contributed to this specific injury (i.e. in this factual scenario) rather than a vaguer description of something beneficial.
Furthermore, the case demonstrates (again) that an increase in risk does not equate to showing that there was as a matter of fact even a contribution. Although an inference can be drawn, less likely does not always mean unlikely, and without firm expert support, proving either causation or contribution may be difficult.
Call: 2012
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