In a recent article published by The Times, it has reported that the families whose babies died at the Shrewsbury and Telford Hospital NHS Trust have written to the Government warning that its planned cap limit for clinical negligence claims will result in other, similar negligence continuing to go unexposed.
The proposed cap limit for clinical negligence claims
The proposed cap limits the fees a specialist clinical negligence solicitor can recover in lower-value claims, where damages are less than £25,000. This includes maternity cases where babies die.
Under the current proposals, costs would be capped at £6,000 for standard track claims, plus a further 20% of the damages agreed. For light track claims, recoverable costs would be limited to no more than £1,500, plus 10% of the damages.
The Government has said the reason for the proposed cap limit is due to the cost of clinical negligence claims increasing in recent years. In 2006-07, the cost of claims amounted to £582 million; by 2020-21 this figure has risen to £2.2 billion.
Ministers have claimed that legal costs are disproportionate to levels of compensation awarded to claimants, with the average legal fees being double the compensation amount.
Specialist solicitors have expressed their concerns that the cap will mean that they will be unable to represent injured persons and families. This will subsequently leave them having to represent themselves, which will most likely make it more expensive for NHS Resolution to deal with.
The letter sent to the Health Secretary
The families have written a joint letter to Steve Barclay (Health Secretary) addressing their concerns that if the Government implement’s its plans it would deny access to justice to families in similar situations.
The letter further states that the Shrewsbury and Telford NHS Trust put up a “wall of silence” for many years surrounding what would eventually show that there had been more than 200 avoidable baby deaths at the hospital.
In their letter, the families wrote that…
“…those walls and those denials were broken down thanks to the expert legal advice we . . . received from key specialist clinical negligence lawyers”.
The letter goes on to state that the proposed cap will hinder their ability to uncover other cases of medical negligence:
“Your proposals would be dangerous, potentially denying people like us access to justice and to the answers we have needed to alert parents across the UK.”
The families added in the letter that specialist clinical negligence solicitors are:
“…working round the clock on the aftermath of Ockenden’s words, and are working on more than a hundred new cases which have come to light and on ways to quickly find settlements for the suffering and harm we have experienced”.
Response to the letter
In response to the letter, a spokesman for the Department of Health and Social Care commented that “no one should experience the avoidable tragedies set out in the Ockenden report”.
Adding that the Government has recently invested £127 million in the NHS maternity system “to boost the workforce and improve care, on top of £95 million invested into the establishment of 1,200 midwives and 100 consultant obstetricians”.
However, in respect of the proposed cap, the spokesman said that ministers “have been clear that proposals to streamline the process for lower value claims and achieve faster resolution for more claimants would not reduce people’s ability to access justice”.
Shrewsbury and Telford NHS Trust report
In March this year, an extensive investigation, led by Donna Ockenden, a Senior Midwife, looked at over 1,800 cases spanning 20 years at the Shrewsbury and Telford NHS Trust. It detailed how a culture was prevalent at the Trust that had led to multiple deaths and 1,592 clinical incidents of poor care which related to 1,486 families.
The report confirmed that more than 200 babies may have died, and many others were left with life-changing injuries because of repeated failures at the Trust. The review confirmed that 201 babies could have survived if the Trust had provided better care. There were also 29 cases of severe brain injuries and 65 cases of cerebral palsy.
Ms Ockenden added that the Trust tended to blame mothers for poor outcomes, even in some cases for their own babies’ deaths. In total, the report identified 60 areas where improvements could be made at the Trust.
Comment
It is vitally important that patients and families can access specialist-dedicated clinical negligence solicitors when the need arises.
Specialist solicitors across the country have been pivotal in revealing NHS scandals in recent years. The proposed cap will heavily restrict this. It will most likely have a damaging effect on patients’ and families’ access to justice, especially for older persons, those on lower incomes, and people with pre-existing disabilities.
Instead of limiting a person’s access to justice, the focus should instead be on trying to prevent medical mistakes in the first instance.
How we can help
Matthew Olner is a Partner in our Medical Negligence team, which has been ranked in tier one by the independently researched publication, The Legal 500.
At Nelsons, our experienced team of solicitors investigate and successfully pursue birth injury claims for children and mothers injured during childbirth. We have clients based all over the country and we are always happy to visit clients in hospital or their own homes.
We instruct the most experienced independent medical experts, who will review your medical records and comment on the standard of care that you received and whether this was negligent in causing your injury.
Please call Matthew or another member of the team on 0800 024 1976 or complete our contact form.
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