Does Cerebral Palsy litigation have a quick fix solution?

How long do you spend buying a pair of shoes? Ten minutes? Five? Fifteen at the most?

What about a bicycle? Perhaps weeks of research followed by 15 minutes in the shop?

Your first home? Months of viewings followed by hours and hours of meticulous research and planning? Maybe you would get some advice: perhaps an estate agent, a mortgage advisor and even a house finder?

You’re spending a lot of money and you’ve got to get it right.

It’s fair to say the bigger the purchase, the longer it takes and the more advice and help you may need.

What if you were purchasing products and resources to support your child’s needs throughout their entire life and for years and years after you were gone? When making your decision you must remember that this is a once in a lifetime opportunity and you can’t return for the shop down the line if the care package doesn’t fit, if the therapies start to unravel or there are holes in the transport and accommodation regimes.

These are the difficult decisions facing the families of children who have suffered brain damage or cerebral palsy because of a preventable mistake.

In response, Jeremy Hunt today put forward proposals for a new system of ‘fast-track’ compensation for children left suffering brain damage or from cerebral palsy as a result of medical errors. He thinks that the new system will help the child. He thinks that the new system will help the parents. He really thinks that the system will also break up what he terms a “compensation culture” in the NHS.
Jeremy Hunt suggests that a system based on the Swedish model of compensation will be cheaper and save money.

It is worth taking a closer look at the Swedish system that is being held up as a shining example. The Swedish system operates in all medical accident cases and not exclusively in the higher value brain injury cases as is being proposed here.

In the Swedish system although about 9,000-10,000 general clinical negligence cases are processed in Sweden annually, compensation is paid in barely half of these cases. Significantly the Swedish system does not claim any expertise in brain injury cases.

In the UK, compensation arising from brain injury is given to cover a child’s needs throughout his or her entire life. In most cases will include provision for a lifetime of:

• Care
• Physiotherapy
• Occupational therapy
• Speech and language therapy
• Assistive technology and equipment
• Transport
• Appropriate accommodation for the child and their family
• Special educational needs
• Loss of earnings
• Professional costs associated with managing the award of compensation

These are not quick fix issues.

Assessing how a child has been affected by brain damage requires careful expert assessment – Does a child meet milestones in terms of development, will time consuming treatment help – if so how much? Is the person likely to need increased care as their condition develops or as their loved ones are less able to care for them? These are assessments that take time and require expertise.

Perhaps it is helpful to point out what these tragic cases are NOT about: –

• They are not about a ‘compo claim’ as the media would have it. Those affected would give anything not to have had to make a claim in the first place.
• They are not about speed. They are about ensuring a life time provision of care and assistance for someone who will always need help. That takes time. Payments should be made on an ongoing basis until enough is known to accurately assess what lifetime need is likely to be.
• They are not about learning lessons. Lessons should be learned but linking recompense to learning lessons is unnecessary. The NHS should have a commitment to preventing future occurrence anyway. In any event, lessons are not being learned. Only last year, a report by the Care Quality Commission found that 37 per cent of maternity services were “inadequate” or “require improvement”. Shockingly, Britain still has one of the worst stillbirth rates in the Western world according to international rankings.

As we all know – prevention is better than cure. What is Jeremy Hunt doing to prevent serious brain injury occurring in the first place?

The first port of call for many concerned parents isn’t litigation, it is the NHS Complaints system.

Put simply, the complaints procedure in the UK doesn’t work. Even the Public Administration Select Committee concluded ‘the processes for investigating and learning from incidents are complicated, take far too long and are preoccupied with blame or avoiding financial liability’.

Parliament recommended an independent Healthcare safety investigation Bureau. The Bureau was set up but without the independence that was needed. The Public Administration and Constitutional Affairs Committee stated

“We remain deeply concerned that HSIB has been established without the necessary primary legislation to assure the independence of the new body and create a statutory ‘safe space’ and that it has been established inside an existing NHS regulator rather than as an independent body. The government must take seriously the need to provide HSIB with a legislative base that will enable it to carry out its functions to full effect, and to establish it as an independent body. The government should bring forward appropriate primary legislation without delay.”

Turning back to Sweden, its complaints process is separate from the system that compensates patients for injuries but it is not completely independent. Some studies showed that less than one-third of the complainants were satisfied after handling and with healthcare providers’ statements about the complaint. The most frequent causes for dissatisfaction were that the healthcare provider ‘did not tell the truth’ or ‘gave insufficient information’.

Sound familiar?