Britain’s Secretary of State for Health, Jeremy Hunt, is hoping to curtail the country’s “blame culture” by establishing a new program to compensate children who suffer birth injuries due to inappropriate medical care.
England Floats Lawsuit-Free Birth Injury Compensation
Attorneys in England say that the Department of Health’s plan, dubbed “Rapid Resolution and Redress,” may save some families from the stresses of litigation, but could also deprive injured kids of the full and proper compensation available in a lawsuit.
Rapid Resolution & Redress
If approved, Rapid Resolution and Redress (RSS) would set up a new system for hashing out claims of birth-related negligence, bypassing the civil justice system entirely.
Rather than file their claims in a court, families would have the option of referring their cases to a panel of independent assessors. The investigators would be tasked with gathering evidence and reviewing medical records. Initial findings would then be sent to a committee of medical experts and attorneys for a final decision on whether or not compensation is warranted. In cases where a child’s injuries are deemed “avoidable,” a newly-formed administrative organization would disburse ongoing compensation.
RSS has been billed as an “independent voluntary” scheme, one that would work alongside, rather than encroach on, England’s civil justice system. Families will not lose the right to litigate their claims in court, but simply be offered an alternative avenue for compensation. The program’s roll-out would only apply to medical care provided by the maternity care plans operated by England’s National Health Service. The National Health Services administered by Wales, Scotland and Northern Ireland would be unaffected.
NHS Highlights Cerebral Palsy, Brain Damage Cases
The idea is being pitched with the promise of greater benefits for children who are left with the most severe birth injuries, notably cerebral palsy and other conditions caused by brain damage. These also happen to be the most costly cases, since children with severe neurological injuries often require round-the-clock care for the rest of their lives.
Public Healthcare “Threatened” By Malpractice Cases
Unlike the United States, the United Kingdom has a strong publicly-funded healthcare system. Most medical services performed in the country are offered through the National Health Service, the largest single-payer insurance system in the world.
Only around 8% of England’s population have private health insurance policies, most of which are considered supplemental to policies provided by the NHS.
Some UK policymakers, including Secretary of Health Jeremy Hunt, a Conservative Member of Parliament, say the country’s insurance programs are under threat, assaulted from all sides by a “litigation culture” driven largely by medical malpractice lawsuits.
Birth Injury Settlements Soar In Britain
Over the last decade, the value of malpractice claims settled in England has risen starkly. The NHS Litigation Authority (now known as NHS Resolution) has found that the average medical malpractice settlement is growing by a rate of 9% per year. The total compensation awarded in cases that involve brain damage and cerebral palsy has climbed even higher, jumping from $456 million to nearly $1.3 billion between 2004 and 2016. Even after adjusting for inflation, that’s still an average annual increase over 10%.
Currently, the National Health Service reaches settlement in about 100 multi-million pound claims for birth-related child injuries every year. The vast majority of these lawsuits involve severe neurological damage.
Statistics from the United States show a similar trend, with average medical malpractice settlements continuing to rise in value, albeit at a far lower rate. The number of malpractice claims filed in the US, on the other hand, has dropped significantly, falling by over 50% between 1992 and 2014.
Litigation Slow, Stressful In UK
No one disputes that pursuing a birth injury lawsuit in the United Kingdom can be an unnecessarily lengthy process. The average claim, from initial filings to award of compensation, takes about 11.5 years, according to the NHS Resolution, an arm of the National Health Service that handles negligence claims.
In one sense, this wide gap between filing and judgment appears difficult to overcome. Most birth-related negligence lawsuits take a long time, the National Health Service says, because Courts must wait for a child’s diagnosis and prognosis to become clear before an appropriate settlement can be determined.
Attorneys Doubt That Patient Rights Will Be Protected
While some attorneys in England have welcomed Rapid Redress & Resolution, many lawyers have raised serious concerns. “We support promises of early investigations, apologies and shared learning in the scheme,” said Brett Dixon, president for the non-profit Association of Personal Injury Lawyers. The UK government’s proposal for paying out damages, however, is “crude,” Dixon told the UK legal news source Solicitors Journal.
As currently drafted, Rapid Redress & Resolution will peg the compensation offered to families at around 90% of the average court award for relevant birth injuries. Although RRR panels will be given some latitude in their judgments, the program’s current 90% guideline, “far away from the correct level of compensation for most families,” worries Dixon. “The scheme will apply a factory-style process to dealing with injured children, putting their futures on a metaphorical conveyor belt,” he said. “Once parents have bought into the scheme, they will be held hostage by the terms.”
There is currently no way for parents to appeal the decisions made by the Rapid Redress & Resolution program. Litigation, attorneys argue, allows for more accurate estimates of how much money a child’s life-time care will actually cost. Lawyers have also pointed out a troubling lack of legal representation in the government’s scheme.
Will Transparent Communication Reduce Birth Injuries?
Rapid Redress and Resolution promises families a faster way of securing compensation, but speeding up the process is only one of the National Health Service’s goals.
Promoting transparency, particularly open conversation between families and doctors, is another. Lawmakers hope that more inclusive conversations will improve maternity care in general, as doctors and nurses learn from their own mistakes, and the errors of other practitioners, rather than being penalized for them.
The point, according to MP Jeremy Hunt, is to “achieve a dramatic reduction in the number of tragedies where babies are lost or injured for life.” Hunt says a similar program in Sweden, established in 1975, led to a 50% drop in preventable birth injuries, but this claim could not be independently verified.