Maternity Litigation Bill To Date Is Higher Than Brexit Divorce

100_0039-1This month, NHS Resolution published its Annual report and accounts 2017/18, which reports liabilities arising from incidents up to March 2018* are at £77 billion (up from £65 billion last year).

The “projected cost of obstetric payments to be made in 2018/19 is £735.7 million“, though in 2017/18, the total value of clinical negligence claims received for obstetrics was £2,166.34 million.

Only 10% of all clinical claims are for maternity care, but since they account for approximately half of the total value of  claims, this means that NHS obstetrics alone is currently liable for more than the estimated £37.1 billion Brexit bill.

And remember, this unprecedented debt doesn’t account for maternity mistakes that will happen today or in the futureQuite rightly, the NHS Resolution says a “key area of focus is maternity claims“, and its report explains, “We hold a wealth of knowledge about every compensation claim made against the NHS in England and can use this information to inform the system on
where to focus its efforts to gain a better understanding of problems and ultimately stop them from recurring.

Nevertheless, and disappointingly, there is not a single mention of caesarean birth (delay of, refusal of, failure to carry out) in the entire report.

The issues of hospital caesarean rate targets and refusals (which coroners in the UK have also raised with the government), particularly in light of Montgomery implications for litigation, are also notably absent.

In my view, this is a glaring oversight (and one I have communicated with both the former NHS Litigation Authority and the current Resolution).

MDU Seeks Change in Law

Inevitably, given that the same mistakes keep happening over and over, and costs keep on rising, there are calls for curtailing patients’ ability to access compensation.

On July 13th, the Medical Defence Union issued a press release n response to the NHS Resolution report (Urgent action needed to curb compensation payouts, says MDU), in which the chief executive, Dr. Christine Tomkins, said:

The cost of clinical negligence claims continues to spiral out of control… NHS Resolution has already made individual compensation awards worth well over £20 million, a sum which would have been unthinkable until quite recently… Awards of this size, paid from NHS funds, are damaging for everyone who uses the NHS and cannot be sustained if we want the NHS to survive.

The government is listening. Following criticism from both the National Audit Office and the House of Commons Public Accounts Committee the Department of Health and Social Care convened a working group to look at the how to manage the cost of clinical negligence to the NHS. But what we now need, in the interest of all users of the NHS, is urgent legal reform.

One of the topics on the table is repeal of S2(4) of the Law Reform (Personal Injuries) Act 1948, which still requires all clinical negligence defendants to fund compensation on the basis it will be used for private, not NHS care, even though there is no guarantee that is how the money will be spent. The MDU has been campaigning for this legal change and others, such as fixing claimant’s legal fees and reforming the personal injury discount rate.”

Dr. Tomkins also made her case for legal reform (in the 2012 Independent article, Demand for law to be changed as damages bill climbs 10 per cent a year to reach £18bn), when the litigation bill was less than a quarter of what it is today.

Girl Awarded £15m Compensation

This latest NHS report, and the continuing debate around cost, is very timely given the (BBC) news today that a 12 year old girl with cerebral palsy has been awarded more than £15 million compensation for birth injuries after her brain was starved of oxygen.

Especially given that last year, BBC News also reported how the girl’s parents witnessed a huge improvement in their daughter’s abilities after she had (privately funded) pioneering stem cell treatment in the US.

End Caesarean Rate Targets (and Rethink Attitudes)

The MDU’s Dr. Tomkins proposes, “It would be a fitting birthday present for the NHS if balance could be restored to a system which is so out of kilter that it is putting the NHS under unbearable strain.

I’m convinced that the very best birthday present for the NHS (and more importantly, mothers and babies), would be to end caesarean rate targets, provide balanced information on birth plan risks and benefits, value informed consent and patient autonomy, and truly understand the impact of the 2015 Montgomery v. Lanarkshire Health Board judgment.

This 2015 blog by Caroline Bourke, a Senior Associate at the London law firm Anthony Gold, is one of many to explain its importance: Court decisions on medical consent since Montgomery v Lanarkshire Health Board.

And just last year, a previously unsuccessful claim for a 2003 intrapartum brain injury leading to cerebral palsy was reversed during an appeal “in the light of Montgomery” (Sebastian Webster v. Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62).

Also in 2017, Caesarean Birth made a submission to the Department of Health’s Rapid resolution and redress scheme for severe birth injury consultation, which outlined these concerns in more detail.

I don’t know who read this, or whether it has had any impact (my 2011 letter to the government, passed on by former Health Secretary Jeremy Hunt, and responded to by then Parliamentary Under-Secretary at the DH, Anne Milton, certainly didn’t).

But one thing is for certain; at £65 billion in 2016/17, and £77 billion in 2018/19, the NHS litigation bill is very likely to get worse before it gets better.
*both in relation to claims received, and our estimate of claims that we are likely to receive in the future from those incidents which have occurred but have yet to be reported as claims (incurred but not reported, IBNR).

  • Written by author and journalist Pauline Hull

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