Maternity claims | Mayo Wynne Baxter

Maternity claims

Justice

We all make mistakes (of varying degrees of severity) because we are only human – but when we do, we can learn something from it, if we allow ourselves the opportunity to reflect on why the mistake was made and how we can do better next time.

Organisations are also adopting the same learning culture with the aim of reducing the incidence of mistakes being made, particularly when serious mistakes impact the lives of individuals and their families.

One area which has attracted considerable attention recently is the NHS and the safety of its maternity services.

Earlier this month the Department of Health published a consultation for a scheme aimed at improving the standard of maternity services. Their ambition: to make NHS maternity services among the safest in the world.

It is well known in the clinical negligence world that some of the most severe and high value claims involve brain damage/cerebral palsy following a birth injury. In 2012 the NHS Litigation Authority published a report (Ten Years of Maternity Claims) revealing that these claims amount to 20% of the total of all claims made and 49% of total value.

And so it is no surprise that the consultation for the Rapid Resolution and Redress (RRR) scheme for severe birth injury was born. Essentially the scheme is intended to offer an alternative system for compensating families affected by severe (and avoidable) birth injury.

Currently, the only option for families to secure financial support and care for their injured child is to take the expensive and lengthy road of litigation. We all know that litigation is not an easy road: the NHS Litigation Authority estimated that the average length of time to conclude a severe birth injury case is 11.5 years with £500m spent each year on maternity claims.

The RRR scheme on the other hand proposes a system of support and regular payments for affected families as well as the investigation of avoidable birth injuries to provide clinicians with support for learning. The National Maternity Review (Better Births, 2016) found that improvements in investigations and learning from when things go wrong can be effective in reducing mistakes and the onset of litigation.

How would the scheme work in practice? The RRR scheme would implement a 2-stage test: stage 1 would require an independent investigation to be carried out and a panel of independent experts would decide whether the incident was eligible for stage 2. Stage 2 would involve families being offered counselling and support to access state services and regular payments, as well as legal advice if required. Essentially a compensation package would be provided for the current and future needs of the injured child. However, if a legal claim was to be pursued after the package was put in place, the scheme would be withdrawn.

The RRR scheme is similar to that operating in Sweden, which is said to have reduced serious and avoidable birth injuries by around 50% in the last 6-7 years.

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