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NHS Resolution’s review of five years of cerebral palsy claims: little change since 1991

NHS Resolution’s review of 5 years of cerebral palsy claims was published last week.  50 cases were reviewed where children developed cerebral palsy due to errors antenatally, during childbirth, and in the immediate postnatal period.  All 50 births took place between February 2012 and September 2015 and legal liability (breach of duty and causation of injury) has been admitted in each case. There was analysis of the quality of the Serious Incident Investigation Reports and clinical practice in these cases.

The review found that there was lack of support for families during investigations, poor quality of root cause analysis with staff only being interviewed in 39% of cases, and that the recommendations made were unlikely to reduce future errors due to the poor report quality. Evidence of the poor quality of the investigations included that the patient and family were only involved in 40% of investigations and only 32% had a review involving an obstetrician, a midwife and a neonatologist.

There were errors in fetal heart rate monitoring in 32 out of the 50 claims (64%) and inadequacies in staff competency and training. Patients were not being given sufficient information when asked to give consent. The review also found that breech deliveries were over represented in high value claims for cerebral palsy and considered that it is likely that current obstetric trainees have less experience of vaginal breech deliveries than in the past.  The Royal College of Obstetrics and Gynaecology has now recommended simulation equipment to hone the skills that are needed during vaginal breech deliveries by obstetricians and midwives.

Seven main recommendations were made including ensuring that women and their families are actively involved during investigations, training for staff on serious incident investigations, external or independent peer reviews, emotional support for obstetric and midwifery staff, multi-professional training including training for breech deliveries and CTG training and encouraging Trusts to monitor the effectiveness of their training.   The Early Notification Scheme, which came into effect on 1 April 2017, require Trusts to notify NHS Resolution of all cases of possible severe brain injury within 30 days of the incident occurring, as opposed to when they become aware of a high value claim.  The Scheme highlights the importance of duty of candour.

The report suggests that very little has changed in the last 20 – 25 years.  A 1991 review of 110 cerebral palsy claims found that 70% were related to CTG abnormalities and interpretation.  A 2004 review identified identical themes to this review. From a medical negligence perspective, the fact that these 50 cases are relatively recent means that the errors are likely to have been fairly obvious in order for liability to have been admitted.

In 29 of the 50 claims the staff involved were found to need extra training.  However, the review found that the training that was recommended was often not a new need but one that was in place prior to the incident.  An example was given of a neonatal registrar who was allowed to work although he had not completed his resuscitation training and another was where registrars had performed breech deliveries where they had had no training in this procedure.

It is stated that high quality, effective, multi-professional training will have an additional short-term financial burden, but the long-term financial implications of inadequate training is significant.  Until this is taken on board and implemented on both a national and a local level, it is unlikely that patients’ safety will be improved such that the incidents of future medical harm and, therefore, medical negligence is reduced.

In “Litigation A Risk Management Guide for Midwives” published in 1993 the authors recommended “that hospitals set up arrangements for identifying brain damaged babies, each one of which must be regarded as a potential plaintiff.  They should then carry out a review of the obstetric care as soon as possible after the birth”.  Tim Spring head of clinical negligence at Moore Blatch comments “The authors were defence solicitors and my partners at the time, so it is surprising that perinatal outcome analysis is only now about to be embraced by NHS Resolution 22 years after their own inception.”

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