Pregnancy and birth injury claims - newborn baby

Long awaited Report on Maternity Care published – a vision for the future?

Early in 2015, Baroness Cumberlege embarked on a comprehensive review of maternity services in the UK. This was against the background of failings in maternity units, culminating in the Morecambe Bay Investigation following a high number of avoidable deaths during or soon after birth in one trust. The report opens with a vision for the future:

Our vision for maternity services across England is for them to become safer, more personalised, kinder, professional and more family friendly; where every woman has access to information to enable her to make decisions about her care; and where she and her baby can access support that is centred around their individual needs and circumstances.’

Levels of serious birth injury, such as cerebral palsy, caused by a baby being deprived of oxygen during birth, often due to delays in delivery, have remained stubbornly unchanged for 10 years or more. Stillbirths, whilst relatively uncommon, remain a greater risk in the UK than elsewhere in Europe. The rate of reduction of stillbirths is unacceptably slow, outstripped by third world countries. It is perhaps worth mention that Baroness Cumberlege led the last investigation and report into issues surrounding childbirth, producing the “Changing Childbirth” report in 1993, sadly much of which remains consigned to history.

Beacons of excellence exist, some maternity units in the UK have developed practices and procedures which are adopted worldwide as a means of improving patient safety, although ironically such practices are not universally followed in this country.

This new report has as a key focus safety and better outcomes, particularly with persisting high rates of stillbirth and perinatal mortality in the UK.

Key recommendations include:

  • Personalised care
  • Continuity of care
  • Safer care
  • Better postnatal and perinatal mental health care
  • Multi professional working
  • Working across boundaries
  • Fair and efficient payment system

The report stresses the importance of professionals working together ‘across boundaries’ and ‘breaking down barriers between professionals’. In maternity care all too often the key professionals in midwifery and Obstetrics are currently not crossing professional boundaries to ensure the best outcome for patients.

It also focuses on units where things are going well and learning from other countries including Sweden and Denmark where maternity care results in better outcomes.

All of this is to be welcomed although money must be made available to ensure that the NHS can deliver these key findings.

When things go wrong – how can this be improved?

Investigations

Baroness Cumberlege and her team recognise that there is a failure to deal compassionately with distraught parents and a failure to deal swiftly with complaints and claims is to be welcomed. The report notes that at a time when openness and honesty are most needed, shutters come down and explanations as to what went wrong are not forthcoming and ‘there is no standard approach to investigating.’

There is a clear message of a need for sensitivity in the future with a recommendation to:

Communicate clearly, sensibly and honestly with families, without making assumptions about the significance of their loss or their preferences regarding their care.’

No fault compensation

The report recommends that the ability to learn from errors in care and to improve the support offered to parents can be addressed by a “no fault” compensation scheme. As ever if such a scheme is to be adopted, the devil will be in the detail.

There are some potential problems with such a scheme. Under the current system, whilst a Claimant has to prove a failing on the part of the clinicians treating him or her, those clinicians do not personally meet the claim, nor are they held to account by the legal process. It is difficult to conceive of a “no fault” system where the individual responsible for a serious error of judgment is not in some way held to account or subjected to a degree of scrutiny by his or her employer when enquiring into the detail of an untoward event. If “no fault” means no responsibility, how do we identify what went wrong? To say there is “no fault” in effect creates a greater bar to the ability to learn from errors, by turning a blind eye to the root cause of failings, most commonly human error.

Improving care is paramount. It is undoubtedly true that parents suffering the loss of or serious injury to a child often suffer further distress due to a culture of “deny, defend, delay” on the part of the NHS. Addressing the needs of the bereaved or distressed is extremely important but is secondary – if the errors were not made in the care of mother and child, the need to deal with the parents sense of loss would never arise.

That the scheme should still require the Claimant to prove causation (ie, that the injury was caused by treatment at or around the time of birth) suggests a lack of understanding of the complexity of the issues in such cases. Causation is often the most heavily contested issue in litigated cases. That the issues should be decided by an “insurance assessor” is frankly naïve – the claim of a brain damaged child does not lend itself to the same consideration as a fire or flood damaged house or a collision damaged vehicle.

The report does reflect that in the most serious cases litigation may remain necessary and the “no fault” scheme will be optional. Those who practise in this field know all too well that in order to meet even the basic needs of a child with cerebral palsy and provide lifelong care is likely to cost millions of pounds. It is to be hoped that politicians seeking to implement the recommendations do not ride roughshod over the detail and ignore the opt out safeguard. The off the cuff remark in the report that litigation costs are rising is, as has already been demonstrated in the clinical negligence fixed fee debate, proved to be a misrepresentation of the position in the light of the Jackson reforms and should not be used as an excuse for preventing the seriously injured form accessing much needed compensation. A “no fault” system would be unable to meet the needs of all babies injured at birth, replacing compensation according to need with a token gesture. The burden for caring for all children injured in this way would fall back on to the state, increasing the burden on the NHS.

Way back in 1978 The Pearson Commission reported on the issue of “no fault” compensation schemes. It recommended implementation of such schemes in England for road traffic accidents and accidents at work, based upon the New Zealand and Swedish systems, taking 5 years to complete it’s investigations. Ironically it did not propose a “no fault” in relation to medical claims, indicating that further time would be required to properly assess the potential impact of a scheme on such claims. The recommendations of the report were rejected, with the exception of the ability of the DWP to recover benefits from compensation, a policy implemented some 28 years after it was proposed!

In these faster moving times, when due consideration of complex proposals can often take second place to a headline grabbing knee jerk response, with a range of unintended consequences, is a little caution too much to ask?

Future Vision?

Let the focus rightly be on patient safety, let the consequences be considered and let consultation with genuine experts in the field be part of the process. Pearson was a more considered report, times may be different but patients today deserve no less consideration.

We are highly experienced in dealing with cases relating to maternity care and birth injury. If you or a member of your family needs advice relating to care during pregnancy or labour please contact a member of our Clinical Negligence Team on 0800 316 8892.