New settlement procedures: changing the way the NHS resolves negligence claimsBMJ 2017; 358 doi: https://doi.org/10.1136/bmj.j4134 (Published 07 September 2017) Cite this as: BMJ 2017;358:j4134
- Clare Dyer, legal correspondent, The BMJ
A 5 year old boy with cerebral palsy won an £11.5m (€12.5bn; $15bn) settlement from the NHS in December 2015. His brain had been deprived of oxygen in the womb after midwives failed to notice his mother’s prolapsed cord. Had he been delivered 11 minutes earlier, the legal claim alleged, he would have escaped the devastating injuries that will leave him entirely dependent on other people for the rest of his life.
Last March, an 11 year old girl who was left with permanent brain damage when her blood sugar concentration fell dangerously low after her birth received a £17m settlement. Mother and baby were discharged from hospital when they should not have been; the baby’s blood sugar levels continued to fall, and she sustained brain damage so severe that she will need 24 hour care for the rest of her life.
£2bn of claims
These stories are heart wrenching yet depressingly familiar. Parents made 232 legal claims against NHS trusts in England for severe birth injuries in 2016-17, up 23% from the 188 filed the previous year. These claims are among the most expensive faced by trusts: the total value of those filed in 2016-17 hit nearly £2bn (fig 1⇓). Obstetrics accounts for only 10% of the claims made against trusts, but 50% of the overall value of claims.1
And disasters during birth are set to get more costly for the NHS. In February, the government reduced the discount rate, the notional interest rate that gives the return on investment of compensation payments. The body that handles legal claims against trusts in England, NHS Resolution (called the NHS Litigation Authority until April this year), says that the cost of providing for the complex, lifelong needs of a child severely injured at birth could exceed £20m.
Helen Vernon, NHS Resolution’s chief executive, cites a cerebral palsy case in which a settlement was agreed at £10.4m just before the discount rate was changed in March this year. Settlements on behalf of children must be approved by the court, but the judge refused to approve the deal and told the two sides to reconsider in the light of the change in the rules. A £10.4m settlement became £25.3m.
Why are the same sorts of errors recurring year after year (fig 2⇓)? Wouldn’t the vast sums paid out to settle cases where things have gone wrong be better spent on identifying the risks and taking action to mitigate them?
Robert Francis QC, the veteran clinical negligence barrister who chaired the public inquiry into poor care at Mid Staffordshire NHS Foundation Trust, told the House of Commons health committee in 2013: “If the health service is to learn lessons, it’s no use trying to learn lessons from an obstetric disaster eight years down the line after it’s been settled for millions of pounds in court.”2
Has the NHS taken his message on board at last? Data held by the NHS Litigation Authority were described by a Department of Health report in 2000 as “a potentially rich source of learning from failure.”3 The authority’s new name heralds a new approach, with a focus on looking at incidents when they happen, trying to resolve cases early without the need for legal proceedings, and learning lessons to reduce the risk of similar harm in the future.
The move follows an initiative from the Royal College of Obstetricians and Gynaecologists—“Each Baby Counts,” which aims to halve by 2020 the number of babies in the UK who die or sustain severe injuries because something goes wrong during labour. Trusts are required to report all stillbirths, deaths within the first week of life, and severe brain injuries in term infants within five working days. The first full report in June 2017 made several recommendations to improve safety.4 Investigations into the cases have shown that about three quarters would have had a better outcome if management had been different.
From April this year, reports on incidents that happen in England also go to NHS Resolution’s early notification scheme for potential legal claims. Every trust is asked to report cases within 30 days of the incident rather than waiting for a legal claim.
“We’re collecting every incident whether or not we think that there has been fault,” Vernon explains. Trusts reporting an incident will get advice and help on being candid with parents, help with preserving records and other evidence, mediation where the relationship between the parents and the trust threatens to break down, and a preliminary investigation, when indicated, of legal liability.
There are plans to provide support to traumatised healthcare staff, initially using the National Clinical Assessment Service. “What we also want to do is, when we have a clinician who has been involved in one of our claims, we ask them if they would be willing to lend support, a listening ear,” says Vernon. “It’s someone to talk to in confidence who’s been there, who understands what it’s like. If anyone would like to put themselves forward, we’d be very receptive.”
Claims for serious birth injuries typically take years to resolve. The new scheme will enable trusts to learn lessons quickly and take steps to improve maternity safety. Vernon acknowledges that it may still take time for a full picture to emerge of a child’s prognosis and future needs. “The important difference is that we are working with the trust to get to the right answer and to ensure that the information is being shared with the family at a much earlier stage than we are currently,” she adds. Settling cases as early as possible cuts legal bills. Of the £1.7bn that NHS Resolution paid out in 2016-17 for all types of clinical negligence, nearly £500m went to claimants’ lawyers.
Trusts will need to improve their internal investigations. The Each Baby Counts scheme found that a quarter of investigations did not contain enough information to reach conclusions about the quality of care provided; parents were involved in only a third of cases, and an independent panel member in only 9%.
Resolution’s early notification scheme has recruited two senior clinical advisers on one year secondments to help trusts with investigations and provide an initial assessment of liability. Tim Draycott, a consultant obstetrician at North Bristol NHS Trust, and Rebecca Wilson-Crellin, a senior midwife with Birmingham Women’s NHS Foundation Trust, will also identify and analyse learning points for trusts and the wider NHS. “It’s relatively unusual for a claim to be focused on the activity of one individual rather than a series of events,” notes Vernon.
NHS Resolution’s five year strategy for clinical negligence cases generally is to move away from formal court proceedings when possible. “It’s a myth that we’re all about litigation,” says Vernon, pointing out that two thirds of all the clinical negligence cases settled in 2016-17 were resolved without the need for court proceedings.
Francis warned the health select committee in 2013 that unless the NHS adopted a new culture of openness and candour and settled cases quickly, the litigation bill would continue to grow. Moves such as early explanations for patients on what went wrong, quicker settlements, and working with other NHS bodies to learn lessons and prevent future tragedies hold out hope of stemming the relentless rise of compensation costs and conserving more funds for the NHS.
Another route to compensation for birth injuries
Families of children who sustain serious but avoidable birth injuries will have another option for pursuing compensation claims if the English Department of Health decides to go ahead with its proposed rapid resolution and redress scheme.5
Unveiled for consultation last October with a raft of maternity safety measures, it would provide “consistent, robust, and independent” investigations, says the department, together with support for families and clinicians, learning for the NHS, and earlier payments, totalling about 90% of a typical court award. The scheme is voluntary, and families would still be able to choose to take the case to court instead.
Competing interests: I have read and understand BMJ policy on declarations of interest and have no relevant interests to declare.
Provenance and peer review: Commissioned; not externally peer reviewed.