Fast-tracking medical justice is problematic. Let’s prevent tragedies in the first place.

The way justice is served to families of children damaged during birth is changing but the UK government’s proposals may cut corners and address the consequences rather than the cause.

Suzanne White
9 November 2016

Baby's hand. Unknown photographer. Pixabay. No rights reserved.

On 17 October 2016 the UK Department of Health announced a new action plan for Safer Maternity Care. It aims to promote a culture of openness, reduce the number of stillbirths, neonatal deaths and birth injuries in the UK whilst ensuring that lessons are learnt from these tragic cases.

However, as a lawyer for those seriously injured in our healthcare system, I feel uncomfortable that this was launched alongside a new Rapid Redress Resolution scheme. The scheme, according to the Department of Health, will provide fast-track access to financial support without the need to start legal proceedings.

The inference is clear, those legal proceedings, with their nasty habit of getting to the truth, drag on for too long and this scheme will speed up the process.

I feel that the admirable overall aims set out by the Department of Health mask a problematic scheme which is also aimed to fast-track injured people, or those who have lost loved ones, straight to a sum of money which may or may not be adequate for their care needs.

With over 20 years of experience in these cases, I have never been approached by someone who simply wanted money. People instruct lawyers in order to get answers to questions, answers which are rarely addressed through our ‘not fit for purpose’ NHS complaints system. It goes without saying that I support any proposal to reduce the incidence of these appalling cases but removing lawyers and the legal process from such complex cases is not the answer.

Openness and transparency is expensive

The Department of Health has proposed an £8m fund for maternity training and a £250,000 safety innovation fund. They have pledged to publish maternity ratings to assist with transparency alongside a Maternal and Health Quality Improvement Programme. An additional proposal is a Health Care Safety Investigation Branch to act as a “safe space” for clinicians to speak openly when care has gone wrong. Negligence, especially in obstetric cases, is hidden away. It is hidden so well it often takes a team of independent medical and legal experts to uncover the truth.

Do we not already have openness and transparency when the care of a patient has been negligent? The short answer is no. Negligence, especially in obstetric cases, is hidden away. It is hidden so well it often takes a team of independent medical and legal experts to uncover the truth.

When an incident occurs involving the death or serious injury of a baby, often the family are met with obtuse and obstructive behaviour which only adds to their pain and suffering. Too often there is a complete failure to accept that mistakes were made and it’s up to the parents and their representatives to figure out what happened.

Obstetric cases are the costliest cases to the NHS. Babies with catastrophic brain injuries require constant care meaning millions of pounds are paid by the NHS in compensation for care of that child for the rest of their lives. My experience would suggest that these types of cases are the ones the NHS will strongly defend against a family, and their legal team, in view of the potential compensation involved. 

Proving negligence is not a rapid process

Cases involving obstetric care are hugely complex, often involving a number of experts to determine whether negligence took place, and whether it caused brain damage.

Under this proposed scheme it is difficult to imagine how the ‘avoidable harm’ legal test (and therefore negligence) will be proved without obtaining views from independent experts. If cases are not properly investigated, negligent care may be missed and families will be left with a lifetime of looking after a severely disabled child with without the financial means to do so. 

Compensation and the complex needs of a brain damaged child 

Children who have suffered brain damage have huge and complex long-term needs. Quantifying these needs takes a range of experts – from physiotherapists, paediatric neurologists, speech therapists, and educational psychologists. Under the proposed scheme, without the legal process, there are no guarantees that such experts would be consulted (or that such a procedure wouldn’t be side-lined under future cost-cutting measures).

Under the current system of redress, it is accepted that a child cannot be assessed by experts until they are 5 or 6 years old. In the meantime, the NHS must pay the family interim payments until the child is old enough to be assessed. This way, families have access to financial support and do not need to wait for the resolution of the case. There is a danger that future redress schemes may try to limit or cap the amount of compensation to reduce costs and it is essential that families should always have access to legal advice if the process needed to be challenged.

Prevention is better than cure

Openness and transparency must be encouraged but we also need to consider reducing the incidence of these tragic cases (an estimated 500 per year) in the first place. Ask any claimant clinical negligence solicitor what they would do to reduce the number of birth injury cases, and they will reply in unison: more investment in the number of consultant obstetricians and midwives.

It is clear that the NHS is struggling to cope with the shortage of funding for all services. The recent battle of the figures between Dr Sarah Wollaston, Chair of the Health Select Committee and the Health Secretary, her fellow Conservative Jeremy Hunt, exposed the funding shortage despite empty assurances.  

The Royal College of Midwives believes that maternity units are facing unprecedented challenges as they struggle to cope with a historically high number of births, increasingly complex births, and a serious shortage of midwives in England, with the country still short of 2,600 full-time midwives.

One birth injury case of a child with catastrophic brain damage will cost the NHS well over £5m pounds in damages depending on life expectancy. Just think how many midwives and consultant obstetricians you could employ with that figure, or with the £8m earmarked for the proposed scheme. Such investment could reduce the incidence of these heart breaking cases, and also the costs to the NHS.

If we are to improve the safety of maternity care we need the appropriate staffing levels to prevent tragic cases happening in the first place. When tragedies do happen, families must retain the right to legal redress to get to the truth. Justice must be delivered even if it takes time and money.

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