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New compensation scheme for birth injuries announced
In relation to the BBC news article, Tozers’ clinical negligence partner Stuart Bramley observes –
“The background factors leading to this initiative are well-known. As one of the leading firms specialising in birth injuries (including, sadly, deaths) we are fully aware of the high rates of maternity errors in the UK and the cost of addressing cases where mother and/or baby has been adversely affected by what may have been mistakes before or during a delivery. As the BBC article points out, the costs are high but it must also be recognised that the emotional costs for those involved are even higher.
Whether the proposed Rapid Resolution and Redress scheme will successfully tackle this remains to be seen. Hopes may ride high but those of us who have been involved in medical litigation for some years will recall the NHS Redress Act 2006. Although aimed at lower-value cases, it intended to introduce very similar aims – a voluntary system leading to quicker resolution of legal claims, reduced costs, swifter through-put, clinicians admitting to errors more readily via a form of no-blame culture, and with the NHS learning from each situation and hence taking steps to prevent any repetition. But although approved by Parliament, even after 10 years the procedural and administrative mechanisms have never been put in place. I was an NHS solicitor at the time, defending rather than bringing negligence claims, and the general view as to why this was never initiated was that there was simply too low a take-up – injured patients preferred to wait for an appropriate level of compensation rather than to accept a lower amount quickly. That may initially appear to be grasping but it must be recalled that damages are there to put the patient back in the same position as before the injury, so a reduced sum risks leaving a vulnerable individual without care or necessary equipment later in life.
That last point is doubly true for babies left brain-damaged at birth (the main focus of the proposed new scheme – dealing with birth fatalities is vital, but there are no savings the DoH could make there, since the law limits compensation to bereaved parents to just under £13,000) given the figures involved. One of the reasons these claims last a long time is because the medical experts involved need to wait until the child is old enough for them to assess, with enough accuracy to satisfy the judge who must approve all settlements to anyone under 18, how affected the child will be in future and hence how much care and input will be required and how they will be affected socially and in the labour market. Despite newspaper headlines giving the impression that damages in these claims are simply huge number plucked from the air, each separate component is investigated by experts and carefully calculated and argued by lawyers on both sides and even when a sum is agreed, this must then be approved by a court which looks in great detail at all the evidence.
There are two competing interests to be balanced here – the understandable desire to prevent over-compensating, since these claims are ultimately all funded by taxpayers, and the need to avoid an award of damages running out during the injured person’s lifetime; settlement is once-and-for-all so there is no going back for more. My fear is that the Rapid Resolution and Redress scheme very much risks the latter – any attempt to reduce the damages pay-out and speed up conclusion will unavoidably bring the dangers summarised above. It does have some laudable intentions, such as linking claims to a learning process within the NHS, but to an extent that already exists. What is needed is a balanced and measured approach looking at why these errors occur, how they can be avoided in the first place, how those injured by negligence can best be reparated and how quickly that can be effected without settling so soon that there is uncertainty in the calculations. At present I see none of that in Jeremy Hunt’s announcement. “