BMJ 2017;356:j1181 doi: 10.1136/bmj.j1181 (Published 2017 March 06)
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News
NEWS Government unveils plan to speed up payments for birth injuries Clare Dyer The BMJ
Children who experience severe avoidable injuries at birth could be compensated more quickly under a new out-of-court redress scheme proposed by the Department of Health for England.1 The rapid resolution and redress (RRR) scheme also aims to reduce the number of such injuries by adoption of a learning culture, improve the experience for clinicians and families, and make more effective use of NHS resources. The proposals, which are out for consultation until 26 May, come as the NHS litigation bill for maternity claims reaches nearly £500m (€580m; $610m) a year. The average payout in cases of severe birth injury, around 100 of which are settled each year, is £6.25m, and the average case takes 11.5 years from incident to resolution. The RRR scheme is based on a similar scheme in Sweden that has seen the number of severe avoidable birth injuries drop since it was introduced in 2007. The new scheme would apply only to England and would be voluntary, allowing families to opt out and take their cases to court instead. Only injuries occurring during labour or delivery would be included. In the first stage of the two stage scheme, cases that met the Royal College of Obstetricians and Gynaecologists’ criteria for markers of severe brain injury at birth would be subject to an independent root cause investigation within 90 days. Investigations would focus on systems failures rather than attributing harm to an individual. Families would be given early access to counselling and support in accessing state services. In the second stage, once eligibility has been established families would receive an upfront payment of around £50 000 to £100 000. This would come at the point when the child is old enough to enable the prognosis, the source of the injury, and its avoidability to be established, typically around age 4, although in some cases much sooner. The rest of the compensation package, a lump sum and periodical payments, would follow. The total package would
For personal use only: See rights and reprints http://www.bmj.com/permissions
equal 90% of the compensation that would have been awarded by a court. The consultation document asks for views on the standard that should be applied in deciding whether an injury qualifies for compensation. Under the more generous “experienced specialist” test, compensation would be payable if harm could have been avoided under optimal clinical practice, assessed against the standard of a leading clinical expert. The alternative “reasonable care” test, similar to the current threshold for clinical negligence, is whether the care provided was at the level of what would be considered reasonable practice. This standard would be expected to result in around 122 cases a month, against around 162 cases for the experienced specialist test, the health department estimates. The consultation also seeks views on whether the scheme should be piloted at first in a single region. Peter Walsh, chief executive of the patients’ charity AvMA (Action against Medical Accidents), said, “We welcome the stated intentions of the proposals but seriously question the ethics of funding a scheme from the damages that children who have been brain damaged through NHS negligence need and deserve. On average, each child would lose over £600 000 of the damages they would receive based on assessed need. “On top of this, the NHS would save millions on legal costs that would be incurred if these cases were litigated. One has to ask: why can’t the NHS investigate these cases properly and offer a prompt settlement without depriving brain injured children of 10% of their damages?” 1
Department of Health. Rapid resolution and redress scheme for severe birth injury. 2 Mar 2017. www.gov.uk/government/consultations/rapid-resolution-and-redress-scheme-forsevere-birth-injury.
Published by the BMJ Publishing Group Limited. For permission to use (where not already granted under a licence) please go to http://group.bmj.com/group/rights-licensing/ permissions
Subscribe: http://www.bmj.com/subscribe
Page 1 of 1
News
NEWS Government unveils plan to speed up payments for birth injuries Clare Dyer The BMJ
Children who experience severe avoidable injuries at birth could be compensated more quickly under a new out-of-court redress scheme proposed by the Department of Health for England.1 The rapid resolution and redress (RRR) scheme also aims to reduce the number of such injuries by adoption of a learning culture, improve the experience for clinicians and families, and make more effective use of NHS resources. The proposals, which are out for consultation until 26 May, come as the NHS litigation bill for maternity claims reaches nearly £500m (€580m; $610m) a year. The average payout in cases of severe birth injury, around 100 of which are settled each year, is £6.25m, and the average case takes 11.5 years from incident to resolution. The RRR scheme is based on a similar scheme in Sweden that has seen the number of severe avoidable birth injuries drop since it was introduced in 2007. The new scheme would apply only to England and would be voluntary, allowing families to opt out and take their cases to court instead. Only injuries occurring during labour or delivery would be included. In the first stage of the two stage scheme, cases that met the Royal College of Obstetricians and Gynaecologists’ criteria for markers of severe brain injury at birth would be subject to an independent root cause investigation within 90 days. Investigations would focus on systems failures rather than attributing harm to an individual. Families would be given early access to counselling and support in accessing state services. In the second stage, once eligibility has been established families would receive an upfront payment of around £50 000 to £100 000. This would come at the point when the child is old enough to enable the prognosis, the source of the injury, and its avoidability to be established, typically around age 4, although in some cases much sooner. The rest of the compensation package, a lump sum and periodical payments, would follow. The total package would
For personal use only: See rights and reprints http://www.bmj.com/permissions
equal 90% of the compensation that would have been awarded by a court. The consultation document asks for views on the standard that should be applied in deciding whether an injury qualifies for compensation. Under the more generous “experienced specialist” test, compensation would be payable if harm could have been avoided under optimal clinical practice, assessed against the standard of a leading clinical expert. The alternative “reasonable care” test, similar to the current threshold for clinical negligence, is whether the care provided was at the level of what would be considered reasonable practice. This standard would be expected to result in around 122 cases a month, against around 162 cases for the experienced specialist test, the health department estimates. The consultation also seeks views on whether the scheme should be piloted at first in a single region. Peter Walsh, chief executive of the patients’ charity AvMA (Action against Medical Accidents), said, “We welcome the stated intentions of the proposals but seriously question the ethics of funding a scheme from the damages that children who have been brain damaged through NHS negligence need and deserve. On average, each child would lose over £600 000 of the damages they would receive based on assessed need. “On top of this, the NHS would save millions on legal costs that would be incurred if these cases were litigated. One has to ask: why can’t the NHS investigate these cases properly and offer a prompt settlement without depriving brain injured children of 10% of their damages?” 1
Department of Health. Rapid resolution and redress scheme for severe birth injury. 2 Mar 2017. www.gov.uk/government/consultations/rapid-resolution-and-redress-scheme-forsevere-birth-injury.
Published by the BMJ Publishing Group Limited. For permission to use (where not already granted under a licence) please go to http://group.bmj.com/group/rights-licensing/ permissions
Subscribe: http://www.bmj.com/subscribe
