The Government has recently proposed a new scheme to compensate children who have been injured by negligence at birth. The scheme would offer counselling, case management and legal advice. It is intended to lead to rapid resolution of cases, settle complaints more quickly and encourage staff to be open and learn from their mistakes.
On the face of it this is a very positive step for the NHS following ever rising negligent birth injury figures. The NHS often drags out these cases unnecessarily, denying any wrongdoing, despite evidence to the contrary, only to make a full admission of negligence before the case goes to court. This causes immense distress to the families and for such cases to be resolved at a much earlier stage would obviously help.
However, as ever, the devil is in the detail and it is absolutely crucial that families do not lose out, both by not being able to get to the bottom of matters and financially not being able to fund appropriate care for the duration of the child’s life. At Pattinson & Brewer solicitors we have specialist clinical negligence solicitors such as Linda Levison, who has many years of experience of obtaining the best possible outcome for children who have suffered brain injuries at birth. I wonder would the NHS have the same level of commitment to the child as Linda does? The NHS has a vested interest in its own finances and reputation which leads to the question of would they be influenced by this when trying to settle such cases?
As a Claimant firm dealing with these cases, in theory, rapid resolution sounds like a welcome proposition but we do have some questions. There is already a duty of candour which aims to help patients receive accurate and truthful information from health providers. Is this not enough for the NHS to be open and apologetic? Furthermore, the pre-action protocol is designed specifically to encourage the parties to exchange information at an early stage and offers the NHS an opportunity to admit liability early on. If a combination of these processes does not encourage openness and honesty then I am not sure what else will. The cost of fighting a case would be reduced if Trusts were more responsive to the processes already in place and hold up their hands when appropriate.
Unfortunately, the proposed scheme fails to recognise the complexity in birth brain damage cases. Just by way of example, the potential for different medical opinion where there are timing issues involved, is great. In a delayed delivery case the extent of delay admitted and the timing of events have a huge impact on the extent of damage caused, and on value. The difference could amount to millions of pounds, settlements that can secure a future. Rapid Resolution does not account for these occurrences which traditionally are settled in the High Court, before a Judge presented with both sides of the argument.
It is however good to see that steps are being taken to encourage families to share their experiences and highlight that the NHS can do more to better support families when serious issues do occur in childbirth.
If you would like more information or any advice relating to medical negligence, please do not hesitate to contact Pattinson & Brewer on 0800 988 0777.