Length of maternity cases casts doubt over post-LASPO funding

Negligence: maternity claims account for highest value of actions against trusts

The average time between incident and settlement of a maternity-related medical negligence claim is well over eight years in cases where damages are above £1m and more than four years on average, it emerged last week.

Meanwhile, a study has revealed that more than £3bn was paid out for 5,087 maternity claims by the NHS Litigation Authority (NHSLA) in the 10 years from 1 April 2000. Improving risk management in maternity units is essential to reduce the cost, the authority said in a report on the figures.

The length of work-in-progress involved in maternity negligence cases will have implications for the willingness of solicitors to self-fund or seek other funding after the Jackson reforms and legal aid cuts are implemented next April. All clinical negligence cases will be out of scope from next April except neurological injuries to babies that result in them being severely disabled.

The report said maternity claims accounted for the highest value of claims under the Clinical Negligence Scheme for Trusts (CNST) – the risk pooling scheme for NHS organisations. Obstetrics and gynaecology claims, including maternity, were equal to half the number of surgical claims but were double the value.

On average it took 1.79 years between the incident date and the date the CNST was notified of a claim. The lead-in time averaged 1.72 years for claims above £1m.

However, the average time between incident and settlement of CNST claims is 4.32 years and 8.57 years for the lower and higher-value cases respectively. “The longer time taken to resolve the higher-value claims reflects the complex nature of the cases,” the report said.

The NHSLA pointed out that it still receives notification of new maternity claims even now that pre-date the CNST’s creation in 1995.

The total paid out for maternity claims between 1 April 2000 and 31 March 2010 was £3.1bn. More than a third of claims (38%) were abandoned by the claimant. The report warned that the total paid out for negligence during the period was likely to be substantially higher “in due course” as claims – in particular relating to birth injury – continued to be made.

The three most frequent types of claim concerned caesarean section, the management of labour, and cerebral palsy. The latter two types, along with cardiotocograph interpretation, which include significant brain injury due to negligence at birth, accounted for around 70% of the £3.1bn.

In a detailed breakdown of the costs of sub-types of claim, the report revealed that more than £10m in damages was paid out for 40 claims of negligence in antenatal ultrasound investigations during the 10-year period, according to data supplied by NHSLA panel solicitors. A further £40m has been reserved for claims yet to be concluded.

So far, legal costs of £1.79m have been paid to claimants’ solicitors and experts, while £667,000 has been paid to solicitors and experts acting for the NHSLA. A further £3.7m has been reserved for claimant costs and disbursements and £1.7m for defence costs and disbursements.

In another area of negligence – uterine trauma – 85 claims over the 10-year period incurred estimated damages totalling £103m. In relation to 45 of those claims, damages averaged £2.5m, with the average reserve for claimants’ and defendants’ costs being £176,000 and £73,000 respectively.

NHSLA chief executive Catherine Dixon said: “Out of 5.5m births in England during the decade covered by the report, about one in a thousand resulted in a legal claim against the NHS. However… it’s vital that we learn and share lessons from them so that professionals can improve their clinical practice in the future and prevent harm. That’s what our report aims to do.”

The NHS Confederation’s chief executive, Mike Farrar, said: “We must in particular learn from the occasions where things have gone very badly wrong. You cannot turn back the clock on a tragedy but you can do everything possible to prevent recurrence by focusing relentlessly on minimising risks.”




30 March 2021

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