The case of Davies involved a claim for damages for clinical negligence brought on behalf of the deceased. The crux of the case concerned causation and whether, on the balance of probabilities, earlier administration of antibiotics would have avoided death.
The Claimant, the widower of the deceased, alleges that the Defendant Trust’s negligence caused the death of his wife. In this case, the Defendant (Frimley Health NHS Foundation Trust) admitted breach of duty but denied causation.
On the 24th of February 2014, Mrs. Davies complained to the Claimant about tinnitus in her right ear. As the pain increased, a friend drove her to her GP, who noted the problem as Otitis media, prescribing oral antibiotics. Later that night she suffered severe night sweats and vomiting. On the morning of the 25th, she was taken by ambulance to hospital, informing the paramedics that she believed she was suffering from meningitis. On admission to Wexham Park Hospital, her temperature was 39.4°C and when seen by a doctor, her Glasgow Coma Score (“GCS”) was recorded as 15 (normal) and she was prescribed anti-sickness medication.
Following the discovery of an elevated white cell count, intravenous paracetamol was provided and a CT scan was requested. At 1.20 p.m. Augmentin was intravenously administered. Her scan results indicated the presence of pneumocephalus, with her husband describing Mrs. Davies at this point as “pretty much incoherent” (para 14). At 2.30 p.m., her GCS was recorded as 9, leading to her being taken to a trauma bay with her GCS continuing to oscillate between 11 and 8 and she began to experience cardiovascular instability which led to her admission to intensive care that same evening.
On the 26th of February 2015, Mrs. Davies suffered a cardiac event of peri-arrest. During the course of the day, her pupils remained dilated, with a GCS as low as 3. Brain stem tests were performed during the afternoon to which Mrs. Davies did not respond. Her husband, the Claimant, agreed to the withdrawal of support with the cause of death certified as acute pneumococcal meningitis and supportive otitis.
The Claimant alleged that, had intravenous antibiotics been administered by 10.40 on the day of admission, it would have been likely, on the balance of probabilities, that she would have survived. Alternatively, the Claimant argued that a failure to administer antibiotics at that time made a material contribution to her death.
The Defendant disputed causation on both counts. It further contended that material contribution was not applicable in this case. It denied that earlier administration of intravenous antibiotics would have made a difference because Mrs. Davies’s condition declined unusually rapidly so that even if the administration of IV began earlier, this would not have prevented death.
After hearing expert opinion on the limited clinical evidence available, His Honour Judge Auerbach found, on the balance of probabilities, that Mrs. Davies had aggressive pneumococcal meningitis which was still amenable to “effective treatment by IV antibiotics, if started early enough” (para 166). The Court noted that the meningitis process had begun overnight before she was admitted, with the virulent nature of the infection meaning that there was less time to start IV antibiotics. The Judge found that between 13:30-14:30 Mrs. Davies had reached a tipping point. At the time when they were administered, there was not enough time for the antibiotics to take effect. However, the Judge held that, if they had been administered at 10.40, the antibiotics would “still have [had] enough time to reach the brain” (para 166(6)). He concluded that the claim succeeded on causation on the balance of probabilities and gave judgment for the Claimant.
James Counsell QC, a barrister in Outer Temple’s clinical negligence team commented on the case as follows:
“This seems to be a straightforward application of the usual rules on causation. Although the issue of material contribution was raised, as a fall-back argument on the part of the Claimant, he did not need it because he succeeded on his primary case. Reading the judgment, one cannot help but feel that, as in so many cases where breach is admitted, the claimant starts from a position of strength when it come to the court deciding causation.”
