Anyone who has had any involvement in a medical negligence claim against a hospital trust for obstetric errors will welcome the news that the NHS Litigation Authority recognises the importance of improving patient safety by learning from clinical negligence, and giving those affected the respect of honesty.
'Early transparency'
NHS LA chief executive Helen Vernon said her intention was to reduce the need for expensive litigation by using more mediation in the NHS, early transparency, saying sorry and demonstrating that lessons have been learned to prevent the incident happening again.
The team here knows full well how important clear and honest answers are to families involved in medical negligence claims. For every claim, there is a person or people left to pick up the pieces. Knowing what happened to cause the death or injury of a baby is absolutely vital to moving forward.
Little improvement
The tragic truth, however, is that the NHS is still causing brain damage to the same number of babies as it damaged it 2006. That means that over 11 years, there have been few improvements in safety standards and outcomes.
The current focus in the press is on the growing financial crisis facing every branch of the NHS, which has reached catastrophic levels in many departments. That focus recently has honed in on the cost of compensation paid out by the NHS following successful claims against it.
Partner Mark Bowman has written recently about the money the NHS LA wastes each year when it drags its feet in clear cases of negligence, meaning cases continue much longer than they should, hiking up the costs.
Reducing medical negligence
The Association of Personal Injury Lawyers (APIL) has also recently issued a report on reducing medical negligence costs. It recommends that investing in prevention strategies now is money spent on future savings. In other words, short-term spending for long-term gain – something that is hard to balance in a budget.
It's difficult to accept that 41 per cent of the compensation paid out by the NHSLA was for obstetric claims, mainly to brain-damaged children. As Catherine Dixon, CEO of the Law Society says in the APIL report:
Same mistakes
She's right. It is extremely depressing for the team here reading and preparing case reports for clients where the same mistakes are made over and over again. Prevention must be the priority for the NHS looking to the future.
The APIL report recommends that healthcare providers collect data in an automatic, objective and systematic way, with the clear aim of improving patient safety outcome measurements and reducing the number of negligence claims made, saving costs in the long term. This way, mistakes can be identified more quickly, compared with similar incidents and trends can be recognised before they become problematic.
Vital savings
The shocking statistic is that the NHS could save around £240million each year if the number of babies being injured was halved. Medical negligence claims can and must be reduced. This has to be a priority for every NHS trust in the country. Yes, better transparency and reaction following a tragedy, but, better still, investment to stop that tragedy happening at all.
The following is one of Mark Bowman's recent birth negligence cases. Unfortunately, it highlights everything the NHS LA says it is trying to avoid. Let's hope it does indeed learn lessons from stories like this and upholds its promises to prevent harm in the future.
Settlement against West Middlesex following the death of baby A born with shoulder dystocia
Mark Bowman was instructed by A's parents in a medical negligence claim following his birth and death on Sunday 11 September 2011 at West Middlesex Hospital.
A's mother's ante-natal care was uneventful. During the night of 10/11 September 2011, she went into labour and she arrived at West Middlesex Hospital at 02:55 on 11 September 2011. Following a lack of progress in the labour, she was transferred to a room with a birthing pool, which she entered at 06:00.
Within a few minutes she felt as though her baby was coming and she continued to push. In spite of this, there was no further progress and no delivery of the baby's head. By 06:45 she was getting tired, and while she was fully dilated, the head was still some way from being delivered. By 06:55 the baby's head was noted to be visible, and by 07:00 it was noted to be advancing with each contraction.
After further contractions, A's head was delivered at 07:05. Unfortunately, the care he then received was substandard in several respects. By 07:07, it was clear that he had suffered a shoulder dystocia, that is, his shoulder was stuck and his body would not be delivered. With competent care, had this condition been appreciated at this time, it was alleged A would have been born within a further two minutes, i.e. by 07:09 and he would have been born uninjured.
In fact, the shoulder dystocia was not recognised at 07:07 and therefore the emergency call bell to summon additional midwifery support, an obstetrician and a paediatrician, was not pressed. This was in contravention of not only the hospital's own guidelines but also national guidelines. As a result of the shoulder dystocia not being recognised, A's mother remained in the birthing pool and the midwife attempted to perform the McRoberts' manoeuvre to assist with the delivery. In addition, A's head remained under water leading to a risk of him gasping and inhaling water in response to the stress he was now in.
Eventually, at 07:09, four minutes after the head had been delivered, A's mother was told to stand with one leg on the birthing pool step and to wait until the next contraction, while the midwife activated the call bell as opposed to the emergency bell. Baby A was eventually delivered at 07:12. He was born white, limp and without a heartbeat. The paediatric registrar, who should have been called at 07:07, did not in fact arrive until 07:15, only attempting to intubate A at 07:21. A sadly failed to recover from the circumstances of his birth.
Independent medical reports were obtained from experts in the fields of midwifery, obstetrics, paediatrics and perinatal pathology. Following receipt of such reports, a Letter of Claim was served on West Middlesex Hospital. It was alleged that with competent care the shoulder dystocia should have been diagnosed by 07:07 and that A would have been born uninjured by 07:09.
West Middlesex Hospital initially admitted certain limited failings in A's care but denied that these would have led to an earlier delivery or that A would have survived, let alone survived uninjured. As a result of the refusal to admit liability, proceedings were issued and served against West Middlesex Hospital. Within their defence, the hospital made further admissions but again denied that baby A would have survived with competent care.
It was therefore necessary to exchange witness statements and expert reports with the representatives for the hospital. They chose not to serve any liability expert evidence but instead finally admitted that there was a failure to diagnose a shoulder dystocia at 07:07 or to activate the emergency call bell. It was alleged by the hospital that with such action, A would have been born by 07:10 not 07:12, and not 07:09 as we alleged, and while this would have meant he would have survived, he would have suffered some form of brain injury.
The assertion that A would have been born with a brain injury was an important one as in making such a claim, West Middlesex Hospital implied that the psychiatric injuries sustained by A's parents would have occurred anyway, since even with competent treatment they would have given birth to a damaged baby. Such assertions were vigorously opposed and it was our position that even with delivery at 07:10, A would have been born uninjured.
In order to quantify the claim, A's parents were both assessed by perinatal psychiatrists on behalf of both sides. Following receipt of these reports, the claim settled for a substantial sum of compensation. In addition, and more importantly for the family, they received a letter of apology and significant changes have been made to West Middlesex Hospital's maternity guidelines to try to ensure such events never happen again.