Having a baby is normally one of the most joyous times of life. However, in some cases things can go wrong leading to the devastating situation of a stillbirth, neonatal death or the child sustaining life long serious injuries.
In either case, the consequences are devastating for parents and their families. Faced with the loss of a child, particularly where there has been no concern prior to labour and delivery, the grief can be overwhelming and the need for answers paramount. Where a child sustains life changing injuries, that grief is compounded with the daunting prospect of a lifetime of complex health needs, full time care requirements and grappling with the various authorities and agencies who need to be involved.
In such circumstances, parents often seek legal advice. In the case of neonatal death or a stillbirth, obtaining compensation is often the last thing on the parents’ minds, and the need for an answer or explanation is the driving factor. Often parents will have sought an explanation directly from the Trust beforehand and felt that they have not got anywhere. They see the litigation process as a way of achieving the answers that they need. For parents of children with life changing injuries, the situation is slightly different; although answers are still required, the financial implications of bringing up a child with complex needs are such that they have no choice but to claim compensation.
The Department of Health has been aware of the emotive nature of these cases for some time. It is equally aware that claims for life changing injuries at birth are the most expensive in terms of putting strain on NHS resources. Statistics from NHS Resolution, the body which manages litigation against most hospitals in England, consistently cite these cases year on year as the most expensive in terms of damages and legal costs. The National Audit Office report earlier this year commented that a radical overhaul of the system is needed in order to reduce the money spent on legal claims in general, and on obstetric claims in particular.
It is therefore unsurprising that the Department of Health has spent time reviewing maternity care and announced a refreshed strategy this week. The key aspects are (1) funding for maternity safety champions, better trained midwives and obstetric physicians, (2) funding investigations via the new Healthcare Safety Investigation Branch (“HSIB”) for stillbirth, neonatal death, maternal death and cases involving life changing injuries, and (3) incentives to Trusts to support implementation of best practice.
From a medico legal perspective, the most eye catching of these initiatives is the new investigative process. The scope of the role of NHS Resolution was already increased earlier this year to ensure its prompt involvement where there has been a death or poor outcome at birth. Now the proposal is that HSIB, a new independent body, shall have an amplified role in undertaking reviews and assist with learning from these incidents. The reports that they produce will result in a full account being given to the family, and will form the basis of learning in the future.
Any initiative which identifies poor practice and encourages learning is to be welcomed. However, it is not clear that initiatives of this nature have had much impact in the past. As far as better reports for the family are concerned, these are certainly desired, particularly if it can be demonstrated that the investigation is independent, clear and thorough in its analysis. This may well reduce the number of bereaved families who feel that they need to use the litigation process to obtain answers. Realistically, an investigation is unlikely to result in a reduction in claims being made in cases where funds are needed for lifelong care. However, the existence of a full report may succeed in making the process quicker and easier.
At the same time, the Department of Health has taken the opportunity to clarify that a “Rapid Resolution and Redress Scheme” will become established from April 2019 and will be aimed at the most serious and costly cases. Whilst details are presently unknown, this is likely to be a voluntary scheme whereby an early payment can be made to families where an independent investigation has shown that damage could have been avoided. First impressions are that the payment levels are unlikely to be at a level which will fulfil the Claimant’s needs, compared with going down the formal litigation route and in any event, such payments would need to be approved by the Court.
These proposals are clearly a step in the right direction, particularly if lessons are learned, and investigative bodies are given the power to be rigorous and transparent in analysis. However, if this simply becomes a “tick box exercise”, then it is unlikely that these proposals will have an effect on either the rate of stillbirths, neonatal death or seriously injured babies, or the amount spent on damages and legal costs.