Lawyers call for failure to test for brain damage risk to become ‘never event’


Medical law experts are calling on the NHS to add a new ‘never event’ to its list of serious but preventable patient safety incidents.

Specialists at JMW Solicitors say the failure to carry out a simple test on babies who develop jaundice should be added to the never events list as it can lead to catastrophic brain damage.

Never events are serious but preventable patient safety incidents that should not occur if the available preventative measures have been implemented.

Eddie Jones, head of medical negligence at JMW, said his team is currently representing children who have suffered ‘catastrophic and irreparable’ brain damage because tests of their bilirubin levels – the substance that causes yellowing of skin and eyes – were not done, delaying treatment. 

The brain damage, known as kernicterus, occurs when levels of bilirubin become so high they cross the membrane of the brain. With treatment soaring bilirubin levels can be brought under control but testing and monitoring is key. 

Mr Jones commented: “Despite the potentially devastating consequences, babies who develop jaundice are not consistently being tested. When jaundice occurs in the first 24 hours of life a failure to test and therefore monitor is a particular concern as it represents a risk to the child. 

“A failure to test the child delays their treatment so there is no excuse for such a catastrophic error to be made. This is why we believe it should be recognised as an NHS never event as it may help to ensure midwives and other NHS staff providing neonatal care receive the training and guidance they need. 

“The implications for a child with high bilirubin levels that are not treated in time can be huge. The children we are representing have been left with a whole host of permanent problems, including severe cerebral palsy, deafness, blindness and learning difficulties.

"Some will need 24-hour care for the rest of their lives and will never work or live independently. The parents are left to come to terms with the fact that their baby was born completely healthy but due to the failure to carry out a simple test they are permanently brain damaged.”

Jaundice is a common in newborn babies and is generally harmless but requires testing and careful and regular monitoring. A handheld device can quickly check a child’s levels of bilirubin – the substance that causes the yellowing of the skin and eyes and can affect the brain.

If these are found to be at a certain point the National Institute for Clinical Excellence guidelines state the child must be referred for urgent treatment to prevent brain damage, known as kernicterus, from occurring. Phototherapy and/or a blood transfusion should be commenced as soon as possible for a child that has bilirubin levels above a safe level.


For more information or to arrange an interview:

Kelly Livesey

D. 0161 828 1868 E. 

Let us contact you


COVID-19 Update - Our website and phone lines are operating as normal and our teams are on hand to deal with all enquiries. Meetings can be conducted via telephone and video conferencing.

View our Privacy Policy

Areas of Interest