Pro-bono medical negligence support secures extensive testing for brain stem dead patient

Our medical negligence team provided pro-bono legal support to the family of a young man who was considered to be brain-dead.

We were able to insist that more tests be carried out by the hospital Trust and appointed a highly regarded medical expert to ensure that every possible step was taken to ascertain any chance of recovery before life support was withdrawn.

“Devastating” brain injury

Patient X had suffered a traumatic head injury. He collapsed, went into cardiac arrest and stopped breathing. An ambulance was called and it took the paramedics around fifteen minutes to restart his heart. The patient had suffered significant swelling to his brain. He was rushed to hospital. On arrival, his pupils were size 4 and he was unresponsive. A CT scan revealed bleeding and swelling within his brain. Unfortunately, despite continuous intensive support and clinical interventions, his condition continued to deteriorate.

Brain Stem Tests and Court of Protection application

After a few days in ICU, the Trust clinicians wished to undertake Brain Stem Tests (BST). The family were not in agreement with this due to concerns about the reliability of such tests.

The Trust made an urgent out of hours application to the Court of Protection. The basis of the application was that there was a time limited window for Patient X to undergo BST due to the risk that he would deteriorate further and, as a result, fail to meet the physiological criteria in accordance with the 2008 Code of Practice.

The Judge determined that it was in Patient X’s best interest for testing to be performed but no further treatment decisions were considered or authorised.

The tests were performed shortly after the hearing and confirmed that Patient X was brain-dead.

Instructing an independent medical expert

Fiona Tinsley (our Head of Medical Negligence) received a call from Patient X’s mother to see if we could assist. Until this point, the family had been assisted by another firm of solicitors which was unable to continue acting on a pro-bono basis. Fiona quickly assembled a team, including herself, Deepika Raino (Legal Director) and Becky Addison (Paralegal). We also liaised with expert barristers, Louis Brown KC and Rebecca Clark of Exchange Chambers, to assist with the case. The family’s existing solicitors engaged with the handover of instructions and we sought urgent disclosure of the medical records from the Trust.

Two days later, we held a conference with the former solicitor, our barristers and a medical ethicist. We established the current position, what the family were seeking and what we could realistically achieve. We identified that we would need a suitable independent medical expert (outside of the Trust) to consider the clinical position and advise accordingly in view of the breakdown in trust and communication between the family and the Trust. We agreed that it would be appropriate to instruct a Consultant in Intensive Care Medicine and identified an expert with significant expertise and extensive experience in Court of Protection and High Court hearings.

Having identified an appropriate expert, our legal team joined a conference to meet the family. The family explained how Patient X had been moving his head and squeezing their hands over the weekend. The family expressed that it was their belief that brain stem testing was unreliable as another family member had previously been pronounced brain stem dead but subsequently woke up and went on to recover and live a normal life.

We indicated to the family that we considered it appropriate to instruct an independent medical expert on their behalf to provide a clinical opinion in Patient X’s case. They agreed and we proceeded to instruct.

The following day, having reviewed the medical records, the expert joined a conference with our team and the family. He explained the extent of Patient X’s injuries. He was concerned that Patient X had sustained a C1 spinal fracture — which the Trust hadn’t stabilised — that could invalidate the brain stem test. He also indicated that the Trust had only conducted one CT scan at the beginning of Patient X’s clinical care, with no further investigations being undertaken before proceeding to apply to the Court of Protection for BST. He strongly advised to push for further tests and investigations to confirm the diagnosis.

Mediation and MRI Scan

The hospital Trust held its Ethics Committee Review Meeting. We asked whether the medical ethicist who had advised us and the family could make an in-person submission. This was declined, though it was agreed that written submissions could be made.

The next day, mediation took place between the Trust’s legal representatives, our legal team and the family. It was our position that on the advice of the medical expert (intensivist) we wanted more tests to be conducted — including a CT angiogram, MRI and EEG. We also wanted more time to be agreed for the family to see if Patient X’s condition improved. We were keen to understand more about the C1 fracture and for the Trust to share the outcome of the Ethics Committee Review Meeting from the previous day.

The outcome of the mediation was that the Trust would agree to an MRI scan, which was duly arranged. Following this, the Trust’s clinicians reported to the family that life support should be withdrawn. The family were understandably angered by this decision, given that the MRI had not been formally reported at this stage and they therefore could not simply take the clinicians’ word for it.

Once formally reported, the MRI revealed devastating changes to the brain and irreversible loss of capacity for consciousness and breathing. No evidence of traumatic spinal injury was noted and the clinicians informed the family that these results were supportive of a diagnosis of brain death.

Ending our instructions

In accordance with the discussion that took place at mediation, the family wanted further tests to be done. The Trust had been opposed to these but subsequently agreed to carry out CT angiography (CTA) and an EEG. The CTA showed no blood flow to Patient X’s brain. The EEG showed changes expected after death with no bioelectrical brain rhythms.

Following the results of these investigations and discussions with the expert, it was concluded that sadly, Patient X had already died. For the sake of the family, we needed to convey these findings in the right way and help the family prepare to consent to withdraw life support. This was crucially important to enable them to come together and maintain some control.

The family were not accepting of the investigation’s findings. They believed that Patient X would wake up and wanted us to refer the case back to court to challenge ongoing life support. However, we had no medical grounds to argue their case further. We also considered it to be outside the patient’s and the family’s best interests to pursue a case where the outcome could not be changed based on the clinical evidence, as this would have caused ongoing distress. We took the time to explain the legal and medical evidence and answered all their questions. Shortly afterwards, we discontinued acting for the family.

The family opposed the Trust’s decision to withdraw life support. The Trust made an Application to the High Court to seek approval of a declaration of death and withdraw Patient X’s life support. The family opposed this. The court granted approval to withdraw life support and made a declaration of death.

The family appealed to the Court of Appeal. The appeal was denied.

Patient X’s life support was withdrawn and he sadly passed away.

Challenging and collaborating with the Trust 

Unfortunately, such cases often have tragic and devastating outcomes. We handled this case with extreme sensitivity and responsibility to Patient X and his family.

Due to our instruction and independent expert guidance, further tests and investigations were performed to provide assurance for the family. We challenged the Trust appropriately and acted as the family’s voice to obtain ongoing life support until we were clear that no further treatment could be given.

Our input enabled the client to maintain some sense of control in the decision-making process. It was crucial that our client’s concerns were listened to, respected and acted upon by the Trust. We engaged and worked collaboratively with the Trust to break down some of the barriers in communication with the family. We mediated to agree more time to identify any clinical improvement and ensure more definitive investigations were undertaken beyond the guidance set out in the 2008 Code of Practice.

Ultimately, we could only manage such expectations to clinical and legal certainty. We completely understood that the family simply could not accept that there would be no positive outcome to this case, which was made even more difficult by their earlier experience of a relative who had recovered after receiving life support. It was tragic for them that this outcome was different.

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If you need help and advice from our team, we will sensitively and thoroughly analyse your case to determine its strength and support you through every step of the legal process — challenging any clinical decisions that are deemed to be inconclusive and where further tests, investigations or treatment are clinically appropriate.

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