AXO v Salisbury NHS Foundation Trust [2019] EWHC 1454 (QB) (10 June 2019)
This is a claim for damages brought on behalf of a boy born prematurely in 2008. Shortly after birth, he received a tenfold overdose of pancuronium bromide, which is a muscle relaxant used to facilitate mechanical ventilation. It is alleged that this caused him to sustain significant brain damage which has resulted in cerebral palsy. [1]
D admit that the overdose was negligently administered so that breach of duty is not in issue… it is D’s case that the neurological injury is unrelated to the overdose. It therefore falls to me to determine the issue of causation. [2]
It is not in dispute that the PVL led to AXO’s cerebral palsy. [25]
…the parties are agreed that PVL is an indivisible injury such that the test to be applied is whether the pancuronium overdose made a material contribution to the development of the condition (see Bailey v Ministry of Defence [2009] 1 WLR 1052). [27]
C must prove that the overdose did make a material contribution to the injury on a balance of probabilities. C does not need to prove the mechanism by which the overdose caused damage, only that it did so. However, consideration of the respective opinions on the mechanism of damage is inevitably required before arriving at any conclusions. The balance of probabilities is just that. It does not require medical certainty, or indeed anything approaching that. [28]
Although PVL is rare, it is clear from a review of all the expert evidence that it is a condition that can occur in premature neonates without any failing in care. [143]
AXO’s prematurity and perinatal course are sufficient to explain his neurological injury… neonatologists are likely to have experienced the development of PVL in infants of this prematurity and perinatal condition “many times in their careers” [147]
AXO’s PVL and the associated adverse outcome is not something wholly unexpected that can only be explained by the overdose. On the findings I have made, it appears that his PVL is more likely to be linked to the general complications associated with his premature delivery. [148]
…causation is not established. [160]
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