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No Fault Compensation for Birth Injury Claims Proposed

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In February 2016 a committee chaired by Baroness Cumberlege published a report entitled “Better Births”. The report suggests ways to improve outcomes in maternity services in England. An Annexe appearing at the very end of this report includes another attempt to introduce “no fault” compensation in cases where patients claim they have suffered injury through substandard medical care.

This recommendation relates only to cases where labour begins after 37 weeks or more gestation and the child is injured during labour/delivery, having been considered healthy at the onset of labour. The scheme also includes stillbirths where the child was alive at the beginning of labour. The intention appears to be that where it can be established that the child probably suffered injury during labour or on delivery, as a result of treatment provided or not provided, there is no need to prove fault in order to be entitled to compensation.

The scheme’s authors appear anxious to ensure that families finding themselves in this unfortunate situation don’t have to wait for years for compensation while the legal process is fought out and at the same time seek to limit the cost to the public purse of what the report acknowledges are very expensive cases.

It is not exactly clear how the family would establish that the child had been injured during the latter stages of pregnancy or at or around birth. Reference is made to the claims being settled by “an insurance assessor” with “appropriate professional and legal advice”.

The report mentions that families whose children are injured around birth but who cannot establish fault are presently excluded from any compensation. It is said this scheme would address this omission.

It is proposed that there should be a cap on the amount of compensation payable and that this would not be set by reference to the particular child’s needs.

This latter point in particular has given cause for concern. The director of the patients’ charity AvMA, Peter Walsh, points out that the capping of compensation “would deprive children who have been brain damaged … of the compensation and support they’d need and deserve. Families need fair compensation to pay for expensive services and equipment that their children need to cope with the injuries caused.” He adds that the situation would be even worse if families were compelled to only access services on offer from the NHS or local authorities.

Any family with a disabled child knows how limited those services are. There are long waits for essential equipment such as wheelchairs to be supplied and the shortage of therapists within the NHS means the support available is limited.

AvMA is calling for any scheme to provide for independent assessment of entitlement to compensation and that such compensation should not be a simple capped amount, rather being based on the actual needs of the child. The child should not be limited to dependency on limited state funded services and equipment. Families should be entitled to independent specialist advice.

An advantage of the proposed scheme, according to the authors of the report, is that in the absence of confrontation over allegations of fault, practitioners will more easily learn from cases where things have gone wrong, with a consequent improvement in standards and a reduction in the number of adverse outcomes. The committee cites success in Sweden in reducing the rates of serious birth injury (by 50% over a period of about 7 years) after the removal of the need to prove fault and the only requirement is to establish that the child’s injury arose during labour.

It is proposed that in all cases of stillbirth, neonatal death, maternal death and brain damage, serious incident investigations should be triggered within the NHS body concerned.

It will be interesting to see how this proposal evolves.

If you think you, or someone you know, may have suffered an injury as a result of negligent medical treatment and would like to speak with a member of the Lester Morrill clinical negligence team, please call on 0113 245 8549 or contact us by email at