Claims and the NHS

Susan Brown has over twenty years' experience of working for people who have been injured as a result of medical negligence. We asked Susan to share her insight into some of the worries expressed by families who are considering claiming their child's entitlement to compensation after birth injury from negligent NHS care.  

The NHS has a responsibility to compensate injured patients

When an avoidable birth injury leaves a family devastated by permanent damage to their baby’s brain, and facing a lifetime of emotional, physical and financial hardship that comes with caring for severely disabled, permanently dependent child, the NHS has a moral, professional and legal obligation to apologise for its mistakes and compensate the child for its injury. 

Maternal guilt feelings are natural but usually misplaced

Mothers, in particular, tend to deal with their feelings following negligent birth injury by blaming themselves, which adds to their fear of asking for help with investigating the cause of their child’s disability. We have reassured mothers with every kind of guilt-ridden worry, from, “Maybe I didn’t push hard enough,” to “My mother told me I was drinking too much coffee.” In our experience, despite the sadness which comes with receiving our experts’ confirmation that negligent NHS care caused the child’s brain injury, finally knowing the truth brings two kinds of relief: the knowledge that help is on the way from a successful claim, and the lifting of misplaced, personal feelings of guilt.

Will the NHS refuse to treat my child or change their care if we bring a claim?

No. The NHS will continue to treat your child and should not change the care it gives to any patient simply because they are making a claim for compensation. 

Following an NHS mistake, NHS care will continue to be given to the child, but parents of children with cerebral palsy and severe neurological disability often find that there simply isn’t enough state provision to meet their disabled child’s extensive needs. As the child grows up, their need increases but state provision decreases, and parents often find that the only way to obtain financial help to meet those needs is by making a claim. As parents, making this decision can be tough, but our clients often tell us that they felt they had to do it to do the best they could to provide for their severely disabled child.

NHS accountability is necessary to prevent future injury

The law, the Department of Health and Social Care, and the NHS all agree that patients who have suffered injury as a result of negligent NHS care are entitled to be compensated. The NHS needs to learn from its mistakes if it is to avoid the same mistakes being made repeatedly. The Department of Health and Social Care has set the NHS ambitious learning targets and the Royal College of Obstetricians and Gynaecologists (RCOG) through its Each Baby Counts programme are also working hard to help the NHS learn from its mistakes, with the aim of preventing further mistakes and further harm to patients. Accountability – learning from and accepting responsibility for the devastating harm that is caused by its mistakes – is the only way that safer NHS maternity and neonatal care will be achieved.

If NHS Resolution has contacted you and has admitted that your maternity care was handled negligently, it is vital that you immediately seek independent, specialist legal advice.

When a patient brings a legal claim against the NHS, the NHS is defended in those proceedings by NHS Resolution (formerly known as the NHS Litigation Authority or NHSLA). Since April 2017, NHS Resolution has started intervening earlier in circumstances where negligent maternity care has resulted in brain injury to babies, potentially giving rise to a claim. In some cases, NHS Resolution is contacting parents after the birth and arranging for the NHS’s own lawyers (who will ultimately be defending the claim) to talk to the parents directly.   

As one of the few firms to handle cerebral palsy claims under NHS Resolution’s Early Intervention Scheme, we have found that even after NHS Resolution admits to the parents of an injured child that their maternity care was negligent, they don’t always accept full liability for the injury or make interim payments of the size that we routinely secure for our clients.  The sooner a parent comes to us after a mismanaged birth or intervention from NHS Resolution, the sooner we can establish whether the NHS admits full liability for causing the child’s injury and obtain proper levels of interim funding to begin meeting the child’s and the family’s needs. 

What does it mean when the NHS says sorry?

Apologising, or saying sorry, is not the same as admitting liability. It is simply a caring response after something has gone wrong. NHS staff have both a legal and professional obligation to say sorry when a mistake has been made. Their obligations arise from their NHS employment, their professional regulators, the statutory Duty of Candour which is regulated by the Care Quality Commission, and guidance from NHS Resolution, the NHS defence body.  

In a medical negligence claim, even when the NHS formally admits that the care given was negligent, that alone is not enough to succeed with a claim. A full admission of liability also requires an admission that the negligent care caused the injury which is to be compensated.

In cerebral palsy and other severe disability claims, we work hard to secure early admissions of liability from the NHS. With liability secured, we can then obtain substantial interim payments to alleviate hardship and begin meeting our clients’ needs without having to wait for the conclusion of the claim.

If you or a member of your family has suffered an injury during birth as a result of medical negligence contact the team by email at cerebralpalsy@boyesturner.com and find out if you have a claim.