23rd February 2016
The findings of a national maternity review released today recommends the introduction of a new NHS scheme, which automatically offers compensation to families where babies have suffered injuries during birth, reports Moore Blatch solicitors.
The scheme which will be referred to as “rapid resolution and redress” looks to decide whether parents are entitled to compensation much more quickly, in the hope that this will provide parents with a more rapid and caring response when serious harm has occurred. It is also felt that this will lead to a stronger culture of learning and improved outcomes.
The scheme is based on a Swedish insurance system, covering all medical injuries, which has seen a reduction in avoidable serious birth injuries over the past 6-7 years.
The compensation scheme will be triggered in the following circumstances:
The baby must have been born at term, which will be 37 or more weeks gestation.
At the commencement of labour the baby must have been considered to be healthy.
The baby must suffer harm resulting in serious injury.
If families satisfy the above criteria the report recommends that financial settlements should be provided to support babies care.
Families would receive compensation under the scheme without the need to go to court or prove negligence.
It is suggested that by removing the threat of individual clinicians being branded negligent, there would be an improvement in the effectiveness of serious incident investigations, ensuring that similar mistakes are avoided in the future. Instead the test used to assess compensation will be of causation and whether the harm was the likely consequence of treatment provided at birth.
Moore Blatch clinical negligence solicitor, Dr Mala Sidebottom comments: “Whilst any scheme which can provide parents with financial resources more quickly to care for their child after injury is welcomed, there is still considerable uncertainty over how many families will, in fact, benefit under the new scheme.
“The test of causation is one of the most difficult parts of any legal claim, so it remains to be seen how many parents will benefit under the scheme. In addition the requirement that the harm must occur in term babies will further limit the families benefiting under the scheme.
“There is further scope for uncertainty, when determining which babies were “healthy” at the onset of labour.”
Any financial redress secured under the new scheme does not prevent parents from pursuing a clinical negligence claim. However, if a successful claim has already been made under the new compensation scheme, the amount awarded will be deducted from any future damages under a clinical negligence claim.
Moore Blatch clinical negligence solicitor, Tarra Hills adds: “Whilst we do not yet know the amount of any compensation likely to be offered under the scheme, there is a suggestion that costs could be capped or staged in certain circumstances. It will be important that any compensation reflects the needs of the child following injury, as a tariff system may see families being short-changed and needing to resort to further litigation to get the support they deserve.”
In addition to the new compensation scheme it has been recommended that there is an extension of the circumstances in which a Serious Incident Investigation will be triggered. The extension will expand to include all cases of neonatal and maternal deaths, all cases of severe brain damage and any still birth where the baby was alive at the onset of labour.
Responsibility for carrying out such investigations will also pass to experienced experts through regional maternity Clinical Networks and the standards for investigations will be set by a new Health Services Investigation Branch, as there was found to be no standard approach to investigating when something went wrong.
As well as the compensation scheme – the report makes other recommendations which include:
An emphasis on personalised and continuity of care for women during pregnancy. This includes provision for a personal maternity care budget to be spent on individual, personalised care, giving a woman the choice as to where and how she wants to give birth. This will determine how that money is spent, giving her a greater say than ever before in her care.
Obstetricians and midwives undergoing combined training to forge better working relationships with a greater understanding and respect for each other’s work.
Greater support for women suffering mental ill health after the birth, which is being addressed by the mental health taskforce.
In 2014, there were 664,543 births in England and by 2020 this figure is expected to increase to 691,038. The numbers of stillbirths and deaths soon after birth have fallen by over a fifth in the past decade to 4.3 and 1.8 per 1,000 births respectively. In half of all stillbirths, there are elements of care that, if improved, could have made a difference.