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 first 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.
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.