Dealing with stillbirth medical negligence claims

26th April 2018

All stillbirths are tragic, no matter what the circumstances but for parents to learn that their baby’s death could have been avoided is utterly heart-breaking./

At what is already an extremely distressing time, prolonged investigations and litigation can add to this and make the grieving process all the more difficult.

It appears there is still a long way to go before all such claims are handled with complete transparency, in a timely fashion and, most importantly, minimising distress insofar as is possible to the bereaved mother and father.

Health Secretary Jeremy Hunt plans to develop a more open, learning culture across the NHS. His ambition is to make the NHS “the safest place in the world to give birth” and halve the rate of stillbirths, neonatal and maternal deaths and brain injuries during birth by 2025.

In November 2017, it was announced that from now, April 2018, the Healthcare Safety Investigation Branch (HSIB) will take over investigation of the 1,000 baby and mother deaths and unexplained serious injuries that occur each year. It is hoped that placing greater emphasis on openness and quick resolution after mistakes are made will save lives and cut the NHS’s legal bills (half of all damages that it pays out being maternity-related). Mr Hunt acknowledged that the tragic death or life-changing injury of a baby is something no parent should have to bear, but one thing that can help in these agonising circumstances is getting honest answers, quickly, from an independent investigator.

Just last month (March 2018), the government announced more than 3,000 places on midwifery training courses are to be created over the next four years. Royal College of Midwives (RCM) Chief Executive and General Secretary, Gill Walton, said: “This is a very long overdue acknowledgement by the Government that England’s maternity services need more midwives”. She added: “That will make a difference and it will begin to have an impact on the workload of midwives, but it will not transform maternity services right now. It will take seven or eight years before all of the new midwives announced today will be actually working in our maternity services.”

The NHS Resolution’s Business Plan 2018/19 states that “With 50% of reported claims value (2016/17) in maternity for a relatively low number of claims (10% of incoming volume), it is inevitable that our work in this area will continue to feature highly in or plans. We have been fortunate to secure expert clinical expertise to support our work and to have the opportunity to contribute to the efforts to improve maternity safety, captured in Safe Maternity Care: The National Maternity Safety Strategy – Progress and Next Steps. This refreshed maternity safety strategy sets out additional measures to drive improvement further and faster to reduce stillbirths, neonatal and maternal deaths, and brain injuries that occur during or soon after birth”.

Whilst all this is very positive for the future, there seems to be a lack of emphasis on the present claims for bereaved parents.

I recently settled a stillbirth claim which required protracted negotiations with the NHS Resolution before settlement was reached.

It took several attempts before it was confirmed that it was accepted that the stillbirth would have been avoided.

My colleagues and I have found reluctance from Defendant representatives to provide a counter schedule or any sort of breakdown of their Part 36 offers to try and narrow the issues between the parties / confirm which heads of loss are agreed / disputed.

Whilst this is often expected in various pre-litigated claims, given the sensitive nature of stillbirth claims, one might expect more co-operation from the NHS Resolution, whose primary focus for the future is to resolve concerns fairly and who has confirmed its commitment to Alternative Dispute Resolution (ADR).

Such reluctance and cause for prolonged negotiations only serves to add to the distress of bereaved Claimants.

I hope that with continued media spotlight on improving maternity safety, co-operation shall improve.

In the meantime, it seems only prudent that all Claimant solicitors should take a united and unanimous front when it comes to the heads of loss to be claimed in stillbirth cases.

Below, is provided a non-exhaustive summary of those heads of loss:

General Damages

Great care and thought should be taken in assessing any avoidable physiological injuries sustained by the mother, together with the psychiatric / psychological injuries that she may have suffered (and those of father and other family members, in applicable circumstances).

In applicable cases, the general damages figure should also include consideration for the pain, suffering and loss of amenity of an additional pregnancy / labour / birth costs (in (1) K (2) L v Royal Surrey Hospital NHS Foundation Trust (2013), £5,000.00 was reported to be recovered).

Consideration should also be given to claiming a sum for the loss of satisfaction of bringing the pregnancy to a successful pregnancy (in (1) K (2) L v Royal Surrey Hospital NHS Foundation Trust (2013), MD v Nottingham University Hospitals NHS Trust (2013) and

(1) CS (2) GS v Kingston Hospital NHS Trust (2012) the sum of £5,000.00 was reported to be recovered for this).

Equivalent of Statutory Bereavement Award – £12,980.00 (since 1.4.2013)

Whilst statute does not explicitly provide for this a head of loss in stillbirth claims, there is are a substantial number of reported cases confirming recovery of statutory bereavement equivalent, examples include:

MV v Kingston Hospitals NHS Foundation Trust (2017)

JS v Weston Area Health NHS Trust (2017)

C v Plymouth Hospitals NHS Trust (2017)

W v Royal Cornwall Hospitals NHS Trust (2016)

B v Basildon and Thurrock University Hospitals NHS Foundation Trust (2016) £8,437 (causation was disputed)

C v Taunton and Somerset NHS Foundation Trust (2016) £10,820.00 (limitation was an issue)

(1) J (2) G v Portsmouth Hospitals NHS Trust (2015)

Miss T & Mr W v Yeovil District Hospital NHS Foundation Trust (2015)

S v NHS Commissioning Board (2014) £10,000.00 (liability was disputed)

(1) SP (2) BA v NHS Commissioning Board (2014)

(1) C (2) A v Wiltshire Primary Care Trust (2013)

(1) K (2) L v Royal Surrey Hospital NHS Foundation Trust (2013)

(1) CS (2) GS v Kingston Hospital NHS Trust (2012)

(1) T (2) C v Royal Bolton Hospital NHS Trust (2012)

Special Damages

Past

Funeral Costs

MV v Kingston Hospitals NHS Foundation Trust (2017) £180.00

JS v Weston Area Health NHS Trust (2017) £320.00

C v Plymouth Hospitals NHS Trust (2017) £300.00

B v Basildon and Thurrock University Hospitals NHS Foundation Trust (2016) £1,022.00

(1) J (2) G v Portsmouth Hospitals NHS Trust (2015) £1,900.00 (including headstone)

Miss T & Mr W v Yeovil District Hospital NHS Foundation Trust (2015) £249.00

(1) SP (2) BA v NHS Commissioning Board (2014) £100.00

(1) C (2) A v Wiltshire Primary Care Trust (2013) £1,000.00

(1) K (2) L v Royal Surrey Hospital NHS Foundation Trust (2013) £1,008.00

(1) CS (2) GS v Kingston Hospital NHS Trust (2012) £200.00

(1) T (2) C v Royal Bolton Hospital NHS Trust (2012) £343.00

Layette Costs

MV v Kingston Hospitals NHS Foundation Trust (2017) £1,150.00

JS v Weston Area Health NHS Trust (2017) £2,500.00

C v Plymouth Hospitals NHS Trust (2017) £2,000.00

W v Royal Cornwall Hospitals NHS Trust (2016) £3,000.00

B v Basildon and Thurrock University Hospitals NHS Foundation Trust (2016) £1,625.00

(1) J (2) G v Portsmouth Hospitals NHS Trust (2015) £200.00

Miss T & Mr W v Yeovil District Hospital NHS Foundation Trust (2015) £1,500.00

S v NHS Commissioning Board (2014) £2,000.00

(1) SP (2) BA v NHS Commissioning Board (2014) £2,500.00

(1) C (2) A v Wiltshire Primary Care Trust (2013) £2,500.00

(1) K (2) L v Royal Surrey Hospital NHS Foundation Trust (2013) £2,500.00

(1) CS (2) GS v Kingston Hospital NHS Trust (2012) £2,500.00

(1) T (2) C v Royal Bolton Hospital NHS Trust (2012) £2,500.00

Memorial Plaque / Headstone Costs

JS v Weston Area Health NHS Trust (2017) £1,500.00 (future headstone)

C v Plymouth Hospitals NHS Trust (2017) £1,500.00 (future headstone)

C v Taunton and Somerset NHS Foundation Trust (2016) £900.00

(1) SP (2) BA v NHS Commissioning Board (2014) £638.00 (future headstone)

(1) C (2) A v Wiltshire Primary Care Trust (2013) £1,565.00 (future headstone)

(1) K (2) L v Royal Surrey Hospital NHS Foundation Trust (2013) £1,515.00

(1) CS (2) GS v Kingston Hospital NHS Trust (2012) £500.00

Memorial Items / Grave Decorations and Gift Costs  (cards, balloons, candles and flowers etc)

MV v Kingston Hospitals NHS Foundation Trust (2017) £250.00

C v Plymouth Hospitals NHS Trust (2017) £150.00

B v Basildon and Thurrock University Hospitals NHS Foundation Trust (2016) £49.00

C v Taunton and Somerset NHS Foundation Trust (2016) £500.00

Miss T & Mr W v Yeovil District Hospital NHS Foundation Trust (2015) £200.00

(1) T (2) C v Royal Bolton Hospital NHS Trust (2012) £235.00

Other losses to be considered should include loss of earnings (i.e. beyond that expected in any event), travel costs, medication costs and care (i.e. emotional care and support).

Future losses could also include additional pregnancy costs, loss of earnings (i.e. additional pregnancy or annual anniversaries), annual memorial items, travel costs, medication costs, counselling / CBT treatment / therapies costs, IVF / IUI treatment costs (if applicable) and holiday costs (i.e. if the Claimant(s) did not traditionally go away at that point in the year but do now go away around the anniversary of the index stillbirth).

Taking such a united front, may encourage Defendants to be more proactive when dealing with stillbirth cases and make negotiations more effective and less protracted.

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