Healthcare lawyers at Leigh Day have told former health secretary Jeremy Hunt why they believe they are not seeing a significant fall in cases of clinical negligence in maternity cases.They blame a lack of training, a lack of transparency, a failure to learn from mistakes and to change practice when it is clear where things have gone wrong.
The reasons are laid out in a response to the call for evidence to the Health and Social Care Select Committee Inquiry into the Safety of Maternity Services in England.
Head of clinical negligence, Suzanne White, and Angharad Vaughan, partner in the clinical negligence department, wrote to the Parliamentary committee chair Mr Hunt, who announced the inquiry in July, 2020, saying:
"If we had the same neonatal death rate as Sweden 1,000 fewer babies would die every year."
Suzanne and Angharad said Leigh Day is contacted regularly by parents whose babies are stillborn or who have died shortly after birth as a result of poor maternity care, by mothers who have suffered avoidable maternal injuries and by parents of children with cerebral palsy.
The most common adverse incident which results in a legal claim is a failure in fetal monitoring, which can lead to delays in delivery and brain injury caused by a lack of oxygen.
Compensation can cost the NHS more than £20 million in each proven case.
"Time and again, the central allegations of negligence in claims for compensation relate to failures in monitoring and in the interpretation of CTG traces," write the lawyers, adding: "We call for greater investment in training clinical staff, particularly in respect of fetal monitoring."
They call to an end to the "postcode lottery" which determines standards of care, pointing out that although good progress has been made in creating a care plan aimed at preventing anal sphincter injuries, it has not been rolled out nationally, so outcomes for women vary according to their location and variations in practice.
Learning and transparency
A statutory duty of candour that was introduced in a bid to increase transparency with patients who have suffered an adverse incident has not been followed consistently.
Suzanne and Angharad explain:
"We continue to be approached by patients who feel they have nowhere else to turn and who have not been consulted or involved in internal hospital investigations into adverse incidents.
"We have also acted for families who, as well as being excluded from the internal investigation process, were given wholly misleading information about whether their child had lived or died."
They say that too often recommendations are not followed, leading to repeated incidents arising from similar circumstances. For instance, at East Kent, where serious incidents are among those which have prompted the committee's inquiry, there are recurring themes of inappropriate staffing, failures in assessment and monitoring, failures in communication among clinical staff and lack of training.
"More needs to be done within the NHS to highlight the importance of transparency when things go wrong and to ensure learning from incidents of avoidable harm," say the lawyers.
They refer to the recent Cumberlege Report which found that healthcare providers' dismissive attitudes toward patients were underpinned by a reluctance in all parts of the system to collect evidence on potential harms, by a lack of coordination that would allow clinicians and agencies to interpret and act on that information, and by a culture of denial that failed to acknowledge harm and error, impeding learning and safety. They say the case for reform is clear.
Leigh Day supports the proposal by APIL for the creation of a national public database which would list avoidable adverse events and set out action to improve patient safety.
The contribution of clinical negligence and litigation processes to maternity safety
On this question, the lawyers point out that only a very small minority of new enquiries will ever translate into a claim for clinical negligence, for which each must be supported by independent clinical expert evidence. They add:
"The focus should be on continued investment in staff training and learning from previous mistakes in order to improve standards and reduce numbers of adverse incidents, a view which is shared by NHS Resolution.."
Suzanne White said:
"We welcome this inquiry into maternity safety. The repeated errors in care received by mothers during childbirth in the UK cannot be allowed to continue. The number of clinical negligence claims we are seeing in this area is not falling, which is of serious concern.
Angharad Vaughan said:
"Every case we encounter is a tragedy for the child and their family. Successful claims typically cost the state vast sums of money, due to the costs of caring for a child who has suffered an avoidable brain injury at birth. A recurring theme in cases we bring is in failures and mistakes in fetal monitoring.
"There needs to be a greater investment in training, increased transparency and an end to the closed ranks culture which, too often, prevents an open and honest conversation with families after something has gone wrong during childbirth."
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