The NHS’s defence organisation, NHS Resolution, has reported that for birth injuries occurring during 2017/2018, admissions of negligence were made within months of the birth in 24 cases. According to NHS Resolution, prior to 2017, it took an average of 11.5 years between the birth injury occurring and compensation being given.
The Early Notification scheme progress report (the EN report) published by NHS Resolution says that the 24 families were given an explanation of what happened, an apology, financial assistance and emotional support following an avoidable birth injury within 18 months of the injury.
Early admissions of liability are key elements of the NHS’s duty of candour which requires the NHS and its employees to be open and honest with patients and their families following medical and healthcare mistakes. Where maternity and neonatal mistakes lead to devastating injury to the baby, an early admission enables our specialist birth and neonatal brain injury team to secure urgent, substantial financial support for the family to begin meeting the child’s and the family’s injury-related needs (such as adapted accommodation, care and case management, therapies and equipment) straight away.
The Early Notification scheme
The scheme was set up in 2017 to improve maternity and neonatal care. One of the aims of the scheme was to provide better support for families whose babies suffered a brain injury following substandard care around the time of their birth, including making early admissions of wrongdoing.
Since April 2017, it has been mandatory for maternity trusts to notify NHS Resolution within 30 days of the birth of any term baby who, following maternity mistakes at birth, has been diagnosed with potentially severe brain injury in the first seven days of life. These babies are at a risk of suffering permanent disability from neurological injury, such as cerebral palsy.
As a result, the Early Notification scheme should encourage earlier investigations and earlier admissions of liability where the maternity care given was found to be substandard. Families with a baby affected by a birth injury as a result of negligent care should receive an explanation of the circumstances surrounding the birth injury, answers to their questions and financial support for the baby’s injury-related needs, all at a much earlier stage.
Early Notification report findings for April 2017 to March 2018
The EN report provides an update on how the scheme is progressing and an overview of cases from April 2017 to March 2018.
Out of a total of 639,984 births in England between April 2017 and the end of March 2018, 746 satisfied the criteria for early notification. Of these 746 births, 69 cases were assessed by NHS Trusts as “likely” to be at risk and were referred to solicitors for further investigation. The remaining cases which were categorised as “possible” or “unlikely” risk were then assessed by NHS Resolution’s early notification team.
The EN report highlighted that investigations had been delayed by incorrect assessment and categorisation of cases. 45% of cases which had been assessed by the NHS Trust which managed the birth as not related to substandard care were re-categorised as “possible” or “likely” negligent claims on later review by NHS Resolution. The cases were then referred to solicitors for further investigation. NHS Resolution has said it will now work with hospitals to provide extra training in the early assessment of cases.
Only 35% of families affected by substandard maternity care received an apology
The EN report reiterates NHS Resolution’s standard advice to NHS trusts that where mistakes have happened, saying sorry is always the right thing to do, but it found that only 35% of the families who received and were notified of substandard care received an apology.
Although an apology can’t turn back the clock, in our experience, apologies are of key importance to our clients who often feel unheard and unacknowledged after a mismanaged birth and daunting brain injury diagnosis. A failed opportunity to say sorry is often one of the factors which drives families with brain-injured babies to instruct solicitors to investigate a medical negligence claim.
Consequently, one of the key aims of the Early Notification scheme and one of the recommendations in the EN report is that families who have received an admission of liability should also receive an apology.
“When things go wrong, it is important that those involved are properly informed and supported and compensation is paid fairly.”
The Early Notification report reiterates that when things go wrong, it is important that those involved are supported and compensation is paid fairly. At Boyes Turner, we couldn’t agree more.
We welcomed the introduction of the early notification scheme and welcome the recommendations for improvements in open communication with families, timely apologies, early admissions of liability and compensation that are set out in the recent EN report.