New Scheme to Settle Maternity Claims.

We recently tweeted news of the Government’s plans for maternity claims against the NHS. Here’s more detail about the proposals and how it might affect some of our clients.

Cerebral Palsy Cases Now

If you think that your baby has been injured because of poor medical care during the pregnancy or in labour, you can have a long wait before any compensation is awarded. Medical experts take  years just to report, which means several years before the case is  ready for court proceedings to begin.

The Courts in England are also under more pressure with less money spent. This means it can take a long time to get hearings and for a trial date to be set.

If you have a successful claim, most often a child’s condition, such as cerebral palsy, cannot be fully assessed until they are older. We do make claims for some money in advance to meet immediate needs, like housing, care and equipment. However, the case will not finally settle until the child’s full prognosis can be identified. This can be over 10 years from the family 1st making contact with a solicitor.

Background To A New Redress Scheme

The Government have recognised the cost of birth injury cases is rising and the number of cases which should have been preventable is also on the rise. To resolve this, professionals were contacted to see if there was a better way to stop medical negligence birth claims.

More than 200 unique responses were received to a consultation held earlier this year on the issue, almost half from midwives and 33 from legal professionals.

The vast majority of respondents agreed the scheme should include early investigations, conducted by professionals independent of the trust involved.

The proposals also asked professionals about who should run the scheme. Many lawyers, ourselves included, said the NHS ought not to run the scheme. We felt there was a real conflict when the same organisation would be paying the compensation bill.

Another part of the scheme will consider NHS Trusts paying less money if their maternity and neonatal safety records improves. Coroners will most likely now investigate deaths of babies stillborn at 37 weeks or more. This should give a better picture of cases nationally which can identify general problems at a Trust or around England.

The New Scheme

From April 2019, the new scheme for maternity compensation will be in place. Whilst details are not yet available, when introduced it will speed up payments to the child. By agreeing fault much sooner, a child will have earlier access to money; this can be used to rehouse the client as well as pay for much needed therapy. This has to be a good thing; we all know that children benefit from early intervention and this is certainly the case for our young disabled clients.

Most importantly, the new scheme should look more closely into outcomes during labour. For far too long, the same mistakes are repeated and long term, life changing damage occurs. This devastates the whole family. Improving patient safety must be top of the list.

The rapid redress scheme is considering admitting fault sooner which also has an impact on legal costs. Cerebral palsy cases are expensive and some of the highest cost cases to pursue. If some of those costs reduce,because liability should be admitted, more money can go back into the NHS to further improve patient safety.

An early upfront payment, likely to be between £50,000 and £100,000,when avoidability can be established, has been considered. We have seen many clients who need significantly more than £100,000 to meet immediate needs. We hope this figure will increase.

Jeremy Hunt MP stated “‘Really when people go to the law, we have failed. If we get this right – if we can be more open, honest and transparent with families earlier on – it will, I hope, mean many fewer legal cases”. We do not think it will mean fewer legal cases because children with cerebral palsy,or other injuries sustained at birth, will always need legal advice. It does, in our view, mean that clients will have access to compensation sooner. We also hope it will mean fewer injuries by preventing more claims which would reduce the number of legal claims.

Conclusion

All our clients, without fail, want to stop others being injured.  A scheme which genuinely prevents negligence and injury is in everyone’s interest. We hope the new scheme will live up to our expectations.

The government has set an ambitious target to halve the rates of  stillbirths, neonatal and maternal deaths by 2025, having brought forward this target by five years.

 

The Association of Personal Injury Lawyers (APIL) state they support promises of early investigations, apologies, and shared learning in the proposed rapid resolution and redress scheme for severe birth injury, but the approach to damages is crude when compared to the proper assessment of a child’s needs which comes with litigation.

‘The original proposed scheme would only pay 90% of an average court settlement. ” We agree that full compensation is needed to care long term for severely damaged babies.

Why The Law On Bereavement Compensation Needed to Change

Ed Myers has been helping clients for over 30 years who have been injured through no fault of their ow. This has included cases where a client has died. It has been argued by claimant lawyers for many years that couples who were not married, when their partner died, should not face the added trauma of being told the loss of their relationship is compensated differently to a married couple.

Finally we now have something to celebrate, as Ed reports in more detail on the recent case which we mentioned in social media last week.

 

Congratulations and thanks to Jakki Smith from Chorley in Lancashire who has successfully changed a law which allowed only the survivor of a married couple to claim a bereavement allowance after their partner died.

Despite recommendations from committed law firms, such as Barratts, and the Independent Law Commission, no Government has been prepared to change a law which reflected society’s values in 1917 rather than 2017.  When Jakki claimed a bereavement allowance of £12,980.00 this was refused by the High Court and she therefore took her case to the Court of Appeal.  Claiming that the English law was in breach of the European Convention of Human Rights, she was able to persuade the court that the previous law was wrong and that it discriminated against unmarried couples.  The court accepted her argument and this has now opened the way for other unmarried partners to claim such damages when their partner dies.

The result is a testimony to Jakki’s willingness to take on, and defeat, a clearly unfair law. All that is now needed is for the Government to introduce new legislation so this decision can be implemented  as soon as possible. We hope the wait will not be too long.

Why Choose Barratts Solicitors?

We recently announced our top ranking in Legal 500, an independent legal guide, which described us as “one of the best” law firms in the country. Less than a month later Chambers Legal Guide has been published. This places both our Personal Injury and Clinical Negligence teams at the top for our litigation work. Our 5 partners are all “notable practitioners”, an accolade that is limited to only a few solicitors in the UK.

What Chambers Say About Our Personal Injury Department In 2017:

Why Is A Review By Chambers Important?

Chambers is a legal guide which asks clients, barristers, solicitors in other firms, medical experts and other professionals to provide a confidential analysis of the best law firms around the world. Only a small percentage of law firms are named each year. The ranking is based on the feedback from these referees; this means it is the most reliable source to find the best solicitors in the UK.

Barratts have consistently been named as one of the best Personal Injury and Clinical Negligence Solicitor firms since appearing in Chambers. The fact that  our 5 partners are also ranked as “notable” means that within the best firms all of our partners are at the top of their profession. We are extremely proud to have retained our number 1 ranking; clients can instruct us knowing that our reputation is built on independent reviews by those who truly know how we work.

Barratts are “one of the best in the country”

Excellence shown on a compass

The Legal 500 is an independent guide which ranks the best legal firms in the UK. Barratts Solicitors are proud that the firm is not only ranked by Legal 500 but is consistently placed in the top 1st tier every year. To achieve this accolade every year is testament to the firm’s commitment to have experienced lawyers handling compensation claims.

The Legal 500 entry gives more information about our lawyers and some examples of cases that we have been involved in for 2016/17:

Fantastic niche firm’ Barratts Solicitors is ‘one of the best in the country’, advising solely on personal injury and clinical negligence cases of maximum severity, such as cerebral palsy and birth injury, spinal and brain injury, and delayed diagnosis and treatment. The clinical negligence department, led by Alison Brooks, is currently investigating quantum of a wrongful birth claim for a child born with severe microcephaly and suffering from cerebral palsy, epilepsy and other health complications. In Peppard v Sherwood Forest Hospitals NHS Foundation Trust, the team claimed damages for paraplegia resulting from delayed diagnosis and treatment of cord compression and venous thrombophlebitis. Emma Zukowska represented a patient of George Eliot Hospital NHS Trust in a trial contested on liability arising from delayed diagnosis of appendicitis followed by peritonitis. The ‘intelligent, tactically astute and hardworking’ Julie Hardy, praised as a ‘model solicitor’, settled claims for delayed diagnosis of pulmonary hypertension, glaucoma and ectopic pregnancy. Court of Protection specialist Julie Greenwood is claiming delay in delivery and resuscitation resulting in dyskinetic cerebral palsy. Personal injury practice head Ed Myers handled litigation proceedings arising from a fatal road traffic accident of a British citizen in France and represented two healthcare workers claiming assault in the workplace against their employer. Other work on the personal injury side included serious road traffic accidents and asbestosis claims. David Tomlinson is also recommended, as is associate Debra Morris, who heads the Derby office. Malcolm Goff has retired.

All our lawyers who were working at Barratts in 2016-17 are personally named.  We think this is unique to our firm. We know that our clients need advice they can trust from lawyers who know what they are talking about. The 8 lawyers share nearly 200 years expertise between them.

Our commitment to helping injured clients was praised by other solicitors, medical experts, barristers, professionals working with those affected by spinal or brain injury, and, last but not least, our clients.

Ed Myers was also named as a leading individual. We could not be more proud of our latest entry in Legal 500.

To find out more about Legal 500, you can also go to their website at http://www.legal500.com.

World Cerebral Palsy Day

On 6th October, we will be celebrating the achievements of everyone living with Cerebral Palsy. Our clinical negligence team have been privileged to work with Cerebral Palsy children for the last 3o years. We  are delighted that a special day has been set aside to recognise this wonderful group in our communities.

World CP Day is a not for profit global movement. It has members across 60 countries and has 6 main aims:

  1. Public Awareness
  2. Civil Rights
  3. Medical/Therapeutic
  4. Quality of Life
  5. Education
  6. Making Our Contribution.
We make it possible

Changing the impossible to possible.

Public Awareness

World CP Day encourages everyone to raise awareness of CP and dispel myths about the condition. Many still feel uncomfortable talking to a person with CP. Some cultures feel shame and others might over protect a child with CP. Mothers around the world have used the movement to promote positive stories and reduce the stigma faced by some children with CP.

Civil Rights

We all know that the treatment of disabled children can vary around the world. In some countries the Government oppose any rights for children with CP.

There is a great video on the World CP Day website by Michelle Middleton in Liverpool. Please view this to learn the “Do’s and Dont’s of Disability”:

https://worldcpday.org/our-campaign/civilrights/michelle-middleton-fixers/

Medical/Therapeutic

The cause of CP is still unknown in many cases. Our own experience of clinical negligence cases is that few are related to damage at the time of birth. The more we can learn about this condition the better the chance of finding effective treatment to prevent CP.

In some countries better access to health care would avoid CP. Knowing the diagnosis sooner also gives better access to therapy. Barratts’ solicitors know that clients are often not told their child has CP until many years after the birth.

Alison Brooks, in our clinical negligence department, has also seen 1st hand how children with CP can benefit from Conductive Education (CE), especially if introduced at a young age. Alison is a trustee of School for Parents which offers CE to pre school children.

Quality of Life

Accessing everyday opportunities and being part of a community can help us all to enjoy life. It is vital that anyone with CP has the same access. Equally important is access to basic needs.

We know of children in Africa who are left on the floor all day because there is no equipment. Let’s spread the message and help improve the lives of people with CP.

Education

Access to education gives the best chance to lead a fulfilling life. Even in the UK, access to the right support in schools is a struggle. We often have to fight for clients to get additional help and equipment can often be inadequate. This means that children cannot communicate properly and their learning is affected.

Outside the UK, many children with disability do not even attend school. You might find the education packs on the World CP Day  website useful:

https://worldcpday.org/our-campaign/education/

Making Our Contribution

Contributing to the world around us means we feel valued yet few adults with CP are working and we rarely see people with CP in the media.

Halldor Bjarnason talks about becoming a father, helping to make the world more inclusive. Alison also has a client with CP who has become a father; that child will have a more accepting view of the world and be richer for it. You can read Halldor’s blog here:

https://worldcpday.org/parenting-with-a-disability-halldor-bjarnason/

Lets all celebrate World CP Day; please spread this news story to encourage us all to think more about CP.

 

 

 

 

 

Top Tips for Personal Budgets

Many of our clients rely on support from the Government to pay for care. The system of Personal Budgets allows parents or carers to apply for financial help from their local council. The procedures and criteria for each council are not the same which makes the whole process confusing and inconsistent.

Alison Brooks recently attended a talk, given by Nottingham City Council  (“NCC”). They gave helpful advice about how to apply for a personal budget (“PB”) and what is covered. Here are some tips you might find useful but please note that every case is decided individually and another council may be different.

What are PBs

  1. Personal budgets cover education, health or social care. They are used to meet the additional needs of a disabled child. They do not cover the usual costs of bringing up a child. This means they do not include costs for childcare so a carer or parent can go to work, even though we know some families struggle to find suitable care for a disabled child.
  2. There is no minimum age limit but councils are reluctant to pay a PB for babies and young children as they would need more help than an older child. Direct payments will stop at age 18 unless the child is in a special school when payments continue to the end of the next school year at age 19.
  3. Payments are usually made direct to the parent who can use the funds to provide respite care or extra help for their child.
  4. Some payments are made to the provider, for example education payments to a school or social and health payments to a care agency.

What Can You Claim?

  1. NCC will pay up to £1,600 if your child has a diagnosed disability, without needing another assessment.
  2. You can also claim up to £6,000 without an assessment but your child will need evidence from a multi agency assessment to show more help is needed.
  3. Your needs will usually be assessed by a social worker if you need a higher budget, for example, overnight short breaks for respite. NCC will fund up to £9,000 per annum.
  4. For those families with very complex needs, a budget over £9,000 can be paid. This is available to children with exceptional health care needs and usually also involves a specialist nurse assessing your child.
  5. Please note this criteria is only applied by NCC. Find out from your own council about their pathways for claiming.

Applying for a Personal Budget

It can be time consuming applying for help. Consider if a close relative or friend can assist; they may have noticed when help is needed that you have not thought about.

Here are some items to think about including in your application

  • Keep a note of extra time you spend in the day and at night for your disabled child compared to one of their siblings.
  • Keep a diary or take photos of times when you have needed someone to help your child access social events.
  • Are you a single parent? Councils are more likely to increase help if you are coping alone.
  • Are there other circumstances at home which might affect your child’s needs, for example, looking after an elderly relative or another child with special needs.
  • What about your own health? It is vital that parents and carers remain healthy and often we see families struggling to look after their own health needs.
  • Keep details of payments and a record of activities which were not covered by the PB plan. You may want to consider adding these to the PB when you apply the next year.
  • If your child’s needs increase, let the council know. The council is able to review PB plans before the annual review takes place.
  • If you need to employ a carer, include the cost of an agency to set up payroll.
  • If your carer may need training, for example, how to move a disabled child safely, then include the costs for manual handling training courses.

If you are not getting enough to help your child, the more evidence you have, the more likely the council will be able to help.

Using Personal Budget Payments

You will need to set up a separate bank account to keep a record of payments. Most councils, including NCC, will monitor paments to make sure you use the money for the needs identified in the support plan. The PB must be used for specific care needs but can include help for your child to mix with their peer group and to achieve as much independance as possible. Accessing social and leisure activities can be included in your plan so make a note of the cost for a carer coming with you.

NCC require 3 monthly monitoring of bank statements and documents. Check what your council needs so you can make sure you have the right information for them. NCC make it easier by setting up an account which they can monitor. This is a good option for busy families and saves you time

If you need to employ carers, make use of the help councils provide to put you in touch with an agency to set up payment. They will include DBS checks as well as making sure pension and payroll and properly set up. YOu will need to keep a record of time spent emplying the carer. Whilst the cost of using an agency will come out of your PB, if you include it in your plan, the money will be there for you to use.

Carers may also want to attend courses on safeguarding (which is usally free to attend) and you may want to ask for money in your PB to cover manual handling courses.

Summary

Working your way through direct payments for Personal Budgets is hard when you are coping with a child with special needs. Do contact your local council to get as much help as possible. It is regrettable that PBs are still a postcode lottery and what one council will pay may vary from each area. We can only suggest you get as much informaton as possible to support your application and ask the council for advice before you send it in.

The council can also tell you about any other services yo might use. We know that NCC has a “Max Card” which families can use for free or discounted access to an event or venue; see www.mymaxcard.co.uk

Get advice from your local doctors and therapists. If you have a social worker, ask them what you can claim and ask other families about their experience – knowledge is power!

 

 

Spinal Injury Association Survey Revealed

The Spinal Injury Association (the “SIA”) polled 136  people with spinal cord injury (“SCI”) to seek their views about litigation. The results show that the current system is too slow but, more importantly, the experience of their lawyer had a significant impact on the person’s compensation. Why are Clients With SCI Unhappy With Their Lawyers? […]

Watchdog to review NHSLA costs

We ended 2016 with another clinical negligence win at Court against the NHS but this comes at a cost to us all. We therefore welcome the decision to review why clinical negligence cases cost so much and how they can be resolved more quickly. This review will be carried out by Parliament’s spending watchdog, the National Audit Office.
Read more

Lessons From Patient Deaths Missed By The NHS

This was the stark warning from a report issued today by the Care Quality Commission (CQC). The year long review found that not even one NHS Trust around the country was getting it completely right.

The CQC have urged the NHS to use their findings to ensure that patient’s deaths are properly investigated with families being involved and heard. The CQC looked into this issue after several high profile cases involving the deaths of patients with mental health or special needs. Here are just some recommendations which the CQC set out:

  • Families should be engaged with the investigation and their voices heard.
  • Families should be informed of their rights and how the death of a family member will be investigated.
  • Families should be kept up to date about investigations.
  • Clinicians need to record when a patient is vulnerable so that other organisations can be informed of the death to decide if an inquiry is needed.
  • Clinicians and staff should have proper training and time to carry out investigations when a patient has died.
  • Medical staff continue to be worried about blame attaching to them and this needs to stop so that there is more openness about the events leading up to a patient’s death.
  • A national framework is needed to give a consistent approach to investigate patient deaths and how to communicate with the patient’s family.

The report was commented upon by the Chair of the Academy of Medical Royal Colleges who said ” we have consistently failed and continue to fail too many of the families of those who die whilst in our care.

The Director of INQUEST was also quoted as saying there was ” a defensive wall surrounding NHS investigations, an unwillingness to allow meaningful family involvement in the process and a refusal to accept accountability for NHS failings in the care of it’s most vulnerable patients”

Our own experience mirrors these sentiments. We know that many of our clients turn to us to find the answers to questions which should have been resolved by the NHS. The determination to stop future deaths is also at the top of our client’s reasons for seeking legal advice.

We are saddened to read that many families are still not told about the circumstances of the death of a loved one; the statistcs showed that the NHS could demonstrate in only 3 out of 27 reports that they had considered the family’s perspective.

The changes recommended by the CQC have been presented to the Secretary of State for Health to consider. We hope this will be the wake up call needed to ensure the NHS do not continue repeating mistakes which can lead to the avoidable deaths of patients.

If you need advice about the death of a family member please contact our Clinical Negligence or Personal Injury Departments who can talk to you in confidence.

Clinical Negligence Reforms Proposed

Birth Injury Cases

The DoH have just announced plans to create a “rapid resolution and redress scheme” for maternity claims. It is suggested that claims take on average 11 years and families often face lengthy fights to secure compensation.
We welcome any proposals which help secure quicker admissions of liability and earlier payments for our clients. However, we would be very concerned if this proposal is intended to limit involvement of proper legal advice for the most severely injured clients with cerebral palsy and reduce their entitlement to proper compensation.
In the last 10 years birth injury claims have not reduced in the NHS. This would suggest that lessons are not being learned to prevent children suffering brain damage. Not every child with cerebral palsy has a medical negligence claim but those who do face a lifetime of financial and emotional cost. We continue to see clients with cerebral palsy whose child should have been born without injury.This should be the priority for the NHS.
The NHS quote an average of 11 years for cerebral palsy claims. We think this is inaccurate; many families only contact a lawyer many years after the birth of their child. Once judgement on liability is entered for a client with cerebral palsy or other serious conditions, it is common to wait until the child is older to finalise the claim, when final medical prognosis is possible. Substantial payments are still awarded during the claim so that clients can move to adapted accommodation and get the help they need until the Court can approve a final award. Arguments by the NHS that families struggle financially for 11 years is certainly not our clients’experience.

Small Claims Limit

The DoH are also considering a fast track for cases under £25,000.The costs are high in clinical negeligence claims because of the complex medical investigations and expert evidence needed. Cases under £25,000 can often involve fatal cases if the Claimant was under 18 years old or clients have a limited life expectancy.
We will be looking carefully at these initiatives to ensure patients are still able to seek specialist advice.

A Duty of Candour

There already exists a duty on hospitals to tell patients when a mistake has occurred. If doctors and nurses continue to work in a blame culture, they can be reluctant to come forward. However, the latest plan is to prevent patients seeing documents around the investigation of a medical incident. We do not see how this will encourage more openness by doctors and medical staff or help to prevent future medical accidents.
At the moment we ask for all investigation documents but under the new plans they would only be disclosed with a court order. In our view this is contrary to the duty of candour. In particular:
– how will patients know if the investigation has produced relevant information for a clinical negligence claim and why should they not be told exactly what has happened, whether or not there is negligence?
– Costs will increase for clients and court time will be wasted if applications to court need to be made before a medical claim can be investigated.
– justice will not be seen to be done
– It creates an unfair system if only defendants have sight of investigation documents which contain a fuller recollection of events by medical staff
– patients will not have the information needed to know if future medical mistakes can be prevented.

We can see no benefit for any patient if this plan is introduced. Indeed, we think it will be a backward step for patient safety and openness by the medical profession. Honesty and avoidable medical accidents should be at the forefront of medical care.

If you would like more information about a clinical negligence claim, or are unhappy with your current solicitor, please contact Julie, Emma or Alison in our Clinical Negligence Department.