An Analysis of Five Years of Cerebral Palsy Claims in the UK

By John Tingle

NHS Resolution, an arm’s length body of the Department of Health that manages clinical negligence and other claims brought against the NHS in England, have just published a report on cerebral palsy legal claims. These claims are complex and result in large awards of compensation. In 2016-17, whilst the obstetrics specialty accounted for only 10% of the 10,686 claims received, they represented 50% of the £4,370 Million value of claims received.

Once case may cost £20 Million or more for one child. The report shows that the same errors are often being repeated and that key patient safety lessons go unlearned. The report analyses the data held by NHS Resolution on its claims management system on compensation claims for cerebral palsy that occurred between 2012-2016.There were 50 claims between this period that were suitable for review with a potential financial liability greater than £390 Million. This figure excludes the costs of defending the claim and the wider cost impact on the NHS as a whole. The results of the report are split into two parts. Part one looks at the quality of the serious incident (SI) investigation reports and part two looks at arising clinical themes.

Report findings show a number of trends:

  • Lack of family involvement and staff support when things go wrong
  • Low quality root cause analysis (RCA) with a focus on individuals
  • Recommendations which are unlikely to prevent recurrence due to lack of focus on systemic changes.
  • Errors with fetal heart rate monitoring
  • Breech birth
  • Inexperienced staff working beyond competence levels
  • Problems with patient autonomy and informed decision-making

A number of important recommendations are made on a variety of issues including Root Cause Analysis methodology used in SI Investigation. When looking at RCA’s there appeared to be a focus on individuals rather than systems, which can wrong foot an investigation. It is important not to lose sight of the broad picture of the care system that operates. System errors may be at fault rather than the individual health care practitioner. There was a general lack of detail and depth in the RCA’s analysed. The question of why the incident happened, or was allowed to happen was often missing. Three of the 50 reports looked at could not identify a single root cause.An individual not having adequate skills was the most frequent contributing factor to failures in care delivery.

An uncomfortable read

The report does make for uncomfortable reading with some of the issues in the report first being identified over 20 years or ago or more. The sort of errors catalogued should not have happened and the fact that they have and continue to happen is shocking by any account.

Patient autonomy and informed consent

Worryingly patient autonomy and informed decision-making was an issue highlighted. Evidence of a lack of informed consent of the patient was evident throughout the 50 claims reviewed. In many claims involving breech births there was inadequate counselling, inadequate documentation of the potential risks, alternative options that were available. This care area requires urgent improvement. The law very much now emphasises after the Supreme Court case of Montgomery v Lanarkshire Health Board [2015] UKSC 11 the concept of patient autonomy and informed consent.

John Tingle

John Tingle

John Tingle is a regular contributor to the Bill of Health blog. I am a Lecturer in Law, Birmingham Law School, University of Birmingham, UK; and a Visiting Professor of Law, Loyola University Chicago, School of Law. I was a Visiting Scholar at Harvard Law School in November 2018 and formerly Associate Professor at Nottingham Law School, Nottingham Trent University in the UK. I have a fortnightly magazine column in the British Journal of Nursing where I focus on patient safety and the legal aspects of nursing and medicine. I have published over 500 articles and a number of leading texts in patient safety and nursing law. My current research interests are in global patient safety, policy and practice, particularly in African health care systems. My most recent publication is: "Global Patient-Safety Law Policy and Practice," edited by John Tingle, Clayton O'Neill, and Morgan Shimwell, Routledge 2018.

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