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October 17th 2016

Birth Negligence

Changes to the birth injury compensation process must see appropriate care and support for families remain priority at all times

Changes to the birth injury compensation process must see appropriate care and support for families remain priority at all times

By Rosamund Rhodes-Kemp, vice-chairman of the Society of Clinical Injury Lawyers (SCIL) and Head of Clinical Negligence at Hudgell Solicitors London.

By Rosamund Rhodes-Kemp, vice-chairman of the Society of Clinical Injury Lawyers (SCIL) and Head of Clinical Negligence at Hudgell Solicitors London.

A new system of fast-track compensation for children who suffer brain damage or from cerebral palsy as a result of medical errors during birth has today been revealed by Health Secretary Jeremy Hunt.

As somebody who has spent the last 25 years supporting the parents of children with such injuries due to medical negligence, and fighting for better and speedier access to compensation, I would certainly welcome any changes which will better support families.

Under the new plans, it is said parents with a maternity claim would be able to join a voluntary “rapid resolution and redress” scheme.

This would see their case assessed by independent investigators, and their findings would then be presented to a panel of legal and medical experts to decide whether compensation is warranted, and arrange for payments to be made.

It all sounds so simple, but unfortunately, these cases are not.

Yes, such a system may be ideal if the primary aim is to save the NHS money and fast-track hundreds of cases of neglect.

I would hope the primary focus of any new birth injury compensation scheme would be to reduce the numbers of errors on maternity wards causing these life-long struggles for children and their families.

The priority should also be ensuring that when these errors do occur, families have the support required to ensure they and their children can live as comfortable a life as possible.

The main reason these cases take a long time to settle is because the child needs to be old enough to be assessed and at least have started school. Care costs are awarded on a yearly basis for life.

The full impact of brain injuries from birth – often linked with a failure to monitor babies’ heart rates or to detect risks of oxygen starvation – very rarely, if ever, become fully apparent until a child has started to develop and mature.

Only then is the full impact of the injuries suffered, and financial and physical support required, fully understood and able to be assessed.

Equally, I have seen many cases where initial assessments have indicated an expectation that a child may not live beyond one or two years, but they have in fact then gone on to live long lives. In such cases, only on-going legal support has ensured they have been provided with all they have needed to get some quality of life.

Another area of concern for me is the access to local care and equipment under the proposed scheme. I can’t begin to imagine how parents would go about accessing the care and therapies  they need in their local communities, and how would they find the mobility equipment required via the NHS, knowing how limited resources are in many parts of the country.

In many areas such support and equipment simply isn’t there, and it needs private funding and expertise – gained over years of supporting families in this situation – to fill what is a massive void in the system.

Mr Hunt says there is too much of a ‘blame culture’ and a fear of ‘litigation or worry about damage to reputation or careers’ when mistakes are made, and with that in mind it is very positive to hear that NHS staff who own up to blunders will get legal protection from prosecution based on their own evidence, although they could rightly still face sanctions if guilty of malpractice or negligence.

It appears that Mr Hunt and the Department of Health have perhaps identified – although maybe not fully recognised – the main issue in all of this.

Blame isn’t the focus, and is never the aim of a legal case.

When we set out to represent a family, finding out who was to blame is never the goal, we simply seek to ensure children and families who have been badly let down are fully supported for a long and challenging life ahead.

A more open culture, where errors are admitted candidly, can shift the entire focus immediately and see all parties work together on the rehabilitation and care requirements of the injured party and their families.

Lessons will be learned and changes and improvement will be made, but not at the expense of the Child at the centre of each and every one of these claims.

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