More work needed on scheme for severe birth injuries, says MDU
MDU argues that a no-fault compensation for all babies with neurological damage as a result of birth would be the fairer system.
The Medical Defence Union (MDU) supports the early notification and investigation of cases where babies have brain damage so they can be given support. But the MDU said other aspects of a proposed Department of Health scheme, to encourage rapid resolution and redress for babies with brain damage as a result of a birth injury, need further thought.
Responding to a Department of Health consultation A rapid resolution and redress scheme for severe avoidable birth injuries Dr Hugh Stewart, MDU director of legal affairs, said:
“We are pleased to see the government is looking at alternative ways of supporting babies whose brain damage may be a result of a birth injury. There are some aspects of the proposals, including the creation of a case manager for patients, which could provide advantages to patients and their families and help them to get the care and treatment their child needs as early as possible.
“However, we think the proposals need a lot more thought and even then it may not be possible to devise a scheme that would work in practice and be affordable.
“We do not believe the proposed grounds for inclusion or exclusion, have been thought through carefully enough, meaning some babies with severe brain damage could be unfairly excluded. Twins are excluded for example, even if one baby had brain damage that qualified for the scheme. We believe a system that provided no-fault compensation for all babies with neurological damage as a result of birth, for whatever reason, would be fairer. This should be coupled with repeal of s2 (4) of the Law Reform (Personal Injuries) Act 1948, which requires courts not to take into account the availability of NHS care when calculating damages in negligence claims.
“Finally, we do not support the creation of new and separate legal tests to decide when financial redress would be paid. The proposed tests would create a lower threshold than the existing test for civil negligence, the Bolam test. We believe the scheme has the potential to stimulate claims and it is likely to increase costs dramatically if it is used as a ‘test run’ for a claim.”
