Money Spent on Medical Negligence Claims Could Be Reduced but the Right to Bring a Claim Must Remain

Reports about the amount of money being spent by the NHS on medical negligence claims highlight the urgent need for deep-rooted changes in the way services are delivered and the way claims are handled...

Reports about the amount of money being spent by the NHS on medical negligence claims highlight the urgent need for deep-rooted changes in the way services are delivered and the way claims are handled.

According to a recent report published by the National Audit Office, almost one fifth of the £2.6 billion NHS budget for maternity services is earmarked for medical negligence cover.

This is a significant sum and very much reflects the much publicised performance-related issues that have affected many parts of the NHS in recent times - maternity wards are no exception. It is evident that too many mistakes are being made and that the understaffing of maternity units has contributed to this.

How can safe, good quality and effective maternity care be delivered where inadequate numbers of midwives and doctors are spread too thinly? Whether maternity healthcare workers are receiving good and appropriate training should also be scrutinised. It is hard to see how senior and experienced midwives and consultants can deliver effective on-the-job training and supervision to more junior colleagues when there is already enormous pressure on their time. As a result, junior colleagues may be left to tackle problems that are new to them with inadequate supervision and with potentially dire consequences.

Are sufficient numbers of doctors available at all times and with the appropriate levels of experience? Very rarely, if ever, will a consultant level obstetrician be present in a maternity unit during the very small hours. In fact, I once heard it said that the best time to have a baby is between the hours of 9 am and 1 pm because this is usually the time when a consultant obstetrician will be present in the unit.

If NHS Trusts want to reduce the number of mistakes that occur, then they could consider taking steps to ensure that a consultant obstetrician is available in maternity units at all times. Not only would this markedly improve the quality of care by ensuring that patients experiencing complex difficulties had access to a consultant but would also ensure that more junior staff were better supervised and better trained, reducing the incidence of mistakes and improving the quality of care in the long-term. Spending money in this proactive rather than reactive way could well make an impact on reducing the number of medical negligence claims.

Such arguments are not new, however. They could be applied to most sectors of the NHS where currently understaffing is of real concern. The reason maternity services have attracted considerable attention is because of the very high levels of compensation involved in cases where babies suffer complex injuries due to mistakes that have occurred during labour and/or birth.

There can be a tendency for people to criticise and attack claimants as being a drain on NHS resources when they learn of these figures. It is important to remember that the claimants in such cases are primarily brain-damaged children with incredibly complex care, therapy, accommodation and equipment needs, which cannot ever be properly met by the NHS or by the relevant local authority. Parents of such children are usually motivated to bring a claim not for punitive reasons but rather because they feel it is the only way in which they will be able to effectively provide for their children's needs. They are simply being good parents and should not be criticised. Because claims of this nature tend to be high value, the NHS may often choose to fight them robustly and cases may be ongoing for some considerable time before an admission of liability is forthcoming or a settlement is agreed between the parties. This can mean that for years, some parents are sadly unable to access funds which would help them to significantly improve the quality of their children's lives. This is not a cost-effective way for the NHS to approach such cases; legal fees would be far less if matters could be resolved at a much earlier stage.

The new duty of candour that has been recommended be made law in the Francis report following the scandal at Mid-Staffordshire NHS Trust should help to reduce the number of mistakes that are being made across NHS services. If there is openness and transparency when something goes wrong, then maternity units should be learning from these mistakes and ensuring that they never ever happen again.

Caroline Klage is partner and Head of Clinical Negligence at Bolt Burdon Kemp


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