NHS clinical negligence legal fees bill in the press | Fieldfisher
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NHS clinical negligence legal fees bill in the press

Mark Bowman
It is always difficult to read in the press stories that focus on the legal costs of clinical negligence cases involving the NHS.

This week on the BBC, such a story raised the possibility that the Department of Health has pledged to tackle 'the unsustainable rise in the cost of clinical negligence', currently estimated at £83bn in outstanding claims.

The same week, the BBC also published the extremely worrying story reporting the at least seven preventable baby deaths in hospitals managed by the East Kent NHS Foundation Trust since 2016. The Trust has acknowledged it provided sub-standard care which contributed to these tragic deaths.

Read together, these two stories starkly illustrate one of the problems with highlighting legal costs out of context. Obstetric claims are by far the largest proportion of negligence cases facing the NHS and what the East Kent report shows is that although the number of baby deaths has fallen over the past decade, the 5,000 babies who are stillborn or who die before they are a month old remains more than in other Western countries. 
What is emerging about failings in care from East Kent hospitals follows all too quickly similar failings at Morecambe Bay and Shrewsbury and Telford.

Many of the deaths are expected because of unavoidable complications. But every year there are too many deaths and serious brain injuries following births at NHS hospitals.

The figures prompted the government to set a target in 2015 of halving the rate of stillbirths, baby deaths and brain injury by 2030. The target has since been brought forward to 2025. Particularly in the case of children living with severe disabilities caused by failures during their births leading to brain damage, the costs of caring for these children and keeping them safe is huge.

A multi-million pound settlement for a child needing two carers day and night sounds high, but broken down, it generally equates to the cost of carers, vital adaptations to accommodation and some respite for parents who have likely not had a night's sleep since the birth of their baby. This person's disability is with them for life and they need a high standard of care for all of those years.

These are the stories seldom reported in the press – the stories of lives devastated by avoidable mistakes. Coming to terms with the fact that midwifery and obstetric care needs to improve drastically must be at the heart of any overhaul of negligence costs. And that is thinking in purely financial terms. The costs in emotional tragedy are impossible to calculate.