The Department of Health (DoH) is looking to minimise the legal costs of dealing with severe, avoidable birth injuries with a new scheme that would see compensation moved away from the courts and dealt with as an administrative procedure.
In a consultation paper published earlier this month, the DoH said it wanted to introduce a ‘rapid resolution and redress scheme’ (RRR) for such cases, combining a system of “consistent and independent investigations” into injuries, along with access to ongoing support and compensation for eligible babies through an administrative scheme.
It said the main aims were to reduce the number of severe avoidable birth injuries by encouraging a learning culture, improve the experience of families and clinicians when harm has occurred, and make more effective use of NHS resources.
The consultation said: “The cost of these incidents is not just a human tragedy, but the rising cost of litigation against the NHS also contributes to pressure on health service funding and risks diverting funds away from frontline care. The current expenditure on maternity claims is nearly £500m per year.”
The DoH said the average length of time between an incident occurring and an award for compensation being made was 11.5 years because the court has to wait until the injured child’s prognosis is clear in order to decide the right level of compensation: “This is amplified by the adversarial culture associated with litigation, and adds further uncertainty and stress for the families involved.”
The NHS Litigation Authority (NHSLA) settles approximately 100 multi-million pound maternity cases a year. Over the past decade, the size of average awards has risen by approximately 9% per annum; the average settlement for a severe neurological birth injury case equates to a value of £6.25m, including costs paid out over the injured person’s lifetime.
“Therefore, a scheme designed to reduce the number of infants harmed in this way in future years also has important potential to deliver savings. Savings may also be achieved through a more efficient and streamlined system that could negate the costs associated with the lengthy litigation process (such as legal fees), which could then be reinvested back into frontline care.
The consultation said maternity claims tended to be of higher value due to the need to provide life-long care, and contribute disproportionately to litigation expenditure compared to the volume of claims lodged. In 2015/16, obstetric claims made up approximately 42% by value of all newly reported clinical negligence claims (the largest single speciality item), but only 10% by number of newly reported claims. This represents less than 0.1% of all births in England during an equivalent time period.
The compensation package for eligible cases under the RRR scheme is likely to involve three elements: an early up-front payment of approximately £50-100,000 issued around the age of four, periodical payments and a lump sum award.
Before the early payment, families of babies who are suspected to have been avoidably harmed would receive access to counselling, legal advice and a case manager to direct them to appropriate state services. There would also be the potential for interim payments where avoidability is established earlier.
Following the early payment, families would progress through the compensation scheme to receive a further lump sum award and periodical payments, calculated in line with need. The lump sum and any periodical payments would be provided on average a year earlier than they would via the court route, the consultation said. There would still be an option to receive legal advice under the scheme.
Periodical payments and associated care provision would undergo “a sensitive reassessment when appropriate to ensure they meet ongoing need”. This would be in line with key developmental milestones at around ages 5, 12 and 18. It is proposed that, compared to current court awards, a greater proportion of overall compensation (approximately 50%) will be made available through periodical payments.
The NHSLA would administer this part of the scheme and put together a panel of independent experts for each claim, with access to legal support if required.
The consultation said: “It is important to note that this scheme is a voluntary alternative to the tort route and does not remove a family’s ability to go to court if they were unsatisfied with the decision of the eligibility panel, or any other reason.
“This would, therefore, provide a route of appeal if a family is unhappy with the panel’s decision. However, any compensation already received by the family under RRR would be off-set against the final court award to prevent double recoverability.”
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