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The Health Secretary, Jeremy Hunt, has outlined plans to introduce a voluntary birth injury compensation scheme which would be available to the parents of still born or brain damaged children.
At the current time England has one of the worst infant mortality rates of any developed country – more than 7 babies are born dead or die soon after birth in every 1,000 births. A significant number of babies are also left with a brain injury or other physical injury as a result of negligent care prior to, during, or after their birth.
Mr Hunt has explained that part of his aim is to reduce the ‘blame culture’ and worry about damage to reputation or careers when something goes wrong. He also spoke about ‘speedier resolutions’ and how, under the current system, families can wait up to 11 years for a Court settlement.
So, will the scheme work? Being a somewhat ‘glass half empty’ person by nature I am somewhat sceptical about how the scheme will actually work in practice.
‘Blame culture’
For example, Mr Hunt talks about moving away from a ‘blame culture’. However, in the context of birth injury cases this misses the point as to why these claims are often pursued in the first place. In my view, a not insignificant number of cases would be avoided in their entirety if the Hospitals and Trust’s concerned were more open and honest about mistakes which have been made. In my experience lawyers are often seen as a measure of “last resort” by families who have exhausted the Trust’s own complaints process but who are still completely unaware of what went wrong and why.
In addition, all healthcare practitioners already owe patients a Duty of Candour which supposedly involves “the volunteering of all relevant information to persons who have or may have been harmed by the provision of services, whether or not the information has been requested and whether or not a complaint or a report about the provision has been made”. In other words, medical professionals should already be speaking openly about failings in care regardless of whether or not a complaint or claim has been made.
In addition, unless the scheme is going to operate on a ‘no fault’ basis it would seem inevitable that the scheme will include an element of ‘blame’ to some extent.
Delay
It also needs to be taken into account that birth injury claims are exceptionally complex and, by virtue of the nature of the injuries and the age at which those injuries are sustained, resolving claims too early can very easily lead to Claimant’s being significantly undercompensated.
For example, the true nature and extent of the brain damage may not become apparent until the child’s teenage years. Up until this point the child may have been hitting all of their developmental milestones, walking, talking and so on and the big risk in these cases is to ignore the fact that with brain injury difficulties can arise as the child develops. In these cases a ‘wait and see’ approach is often required.
Accordingly, when Mr Hunt speaks about the scheme being an alternative to families having to “wait more than 11 years for a Court settlement” it is essential that however the assessment of the appropriate damages figure is reached, this is based upon cogent and reasoned expert medical evidence insofar as the child’s future prognosis is concerned. It does not necessarily follow that because the child has reached the age of say 5 without any significant behavioural or cognitive difficulties that it is safe to assume that the child will not develop any such difficulties at a later date.
Whilst one of the aims of the proposed compensation scheme might well be to ensure ‘speedier resolution’ of birth injury claims this should not be at the cost of ensuring that the ‘right’ amount of compensation is paid. Parents would surely rather wait 11 years for the right figure than 5 years for the wrong one.
Interim damages
In addition, the current system entitles Claimant’s (in those cases where liability is admitted) to interim payments to ensure that a child’s support and therapeutic needs can be met whilst the case is still ongoing. Will the proposed redress scheme entitle Claimant’s to similar interim payments to ensure that their needs are properly met or will the payment of any compensation be delayed until the end of the claim which could mean that several years may pass before the child is entitled to any damages?
Summary
Amongst Mr Hunt’s other announcements were the provision of more money for training and finding ways to improve maternity care. Additional funding for maternity services is long overdue and is to be welcomed. However, insofar as the birth injury compensation scheme is concerned it would probably be sensible to wait until the finer details of the scheme have emerged before passing judgment.
