Proposed cuts in legal aid may mean that many people will not be able to sue the NHS for medical negligence in future. Sheena Hastings reports.
IN April 1997, Julie Green and her husband Rick set off for Grimsby Maternity Hospital to have the birth of their first child induced. Julie had had a normal pregnancy, but the baby was now 11 days overdue. She was given the tablets, hours later nothing had happened and more drugs were needed to trigger labour. A couple of days into the process the baby was showing signs of distress, and the midwife said she thought a caesarian section would be needed to deliver him safely.
Many hours later and with little further progress, Julie says “the midwife put her foot down”. There was then some delay between the decision to go ahead with the delivery and the operation actually happening. When Andrew was born with the umbilical cord wrapped twice around his neck and having ingested his own faeces, he was in a very poorly condition and needed immediate specialist care.
“He wasn’t moving or crying, it was one of the worst things I have ever been through,” says Rick. Andrew was taken away to the special care baby unit, and the next day the consultant told Julie and Rick that the baby was very ill. The 7lbs 10oz little boy had a swollen brain, he was having fits, and he had been starved of oxygen. The doctor told them he did not know what the future held for the little boy, but he would probably not be able to walk and talk.
Julie and Rick took Andrew home and lived in hope that he would recover from his traumatic arrival and show signs of normal development over time.
“Early on we thought he was going to be fine, but when he was a few months old a Barnardo’s visitor came to see us and looked at some notes about the baby. She said, ‘I see Andrew has cerebral palsy’.
“Looking back, we suspected that Andrew was not developing normally, but we never had any guidelines of what to look out for,” says Julie.
Rick adds: “Suddenly everything made sense. The midwife advised us to complain to the hospital about how the birth had been managed, and we had been unhappy about how it all went, so we went to a meeting at the hospital to discuss how we felt.
“The consultant said ‘we admit gross negligence, and expect we’ll be hearing from your solicitor’.”
Two solicitors told the couple that they were unlikely to get anywhere with a claim against the hospital, and then another parent put them in touch with clinical negligence specialist Sally-Ann Robinson, who works for Langleys in York and Lincoln and has great experience of paediatric brain injury claims. The Greens said they just wanted the hospital to admit, formally, that they were in the wrong, and to ensure that Andrew would have a decent quality of life. Sally-Ann felt they had a decent chance of suing the hospital for medical negligence and winning compensation, which Andrew would need to pay for his care for a lifespan projected to be about 72 years.
Ask anyone who has pursued any kind of clinical negligence claim, and they’ll tell you that, even if successful it is not an easy route to take. Julie, then a manager at a furniture store, and Rick, an amusement machine engineer, could not have paid for the cost of legal fees out of their own pocket, but Sally-Ann was able to get a legal aid certificate to cover their fees, which included expensive payments to medical experts. They say they did consider giving up several times because of the emotional strain involved. It took seven years for the case to be settled.
In the meantime, the couple had to take Andrew for tests and examinations by specialists in Sheffield, Manchester and Birmingham. Their terraced home was inspected by architects, looking at how adequate it would be for the boy’s future needs. All the while, as Andrew didn’t reach normal developmental milestones, Julie and Rick continued to hope and Sally-Ann was working to prove the link between the management of his birth and the cerebral palsy. Eventually she succeeded. The availability of legal aid meant that the circumstances of Andrew’s birth could be investigated thoroughly, and it was established that there had been a “negligent delay” in the decision to proceed to a caesarean section. The hospital accepted that Andrew had suffered a severe neurological injury in the form of dyskinetic cerebral palsy as a consequence.
The seven-figure sum awarded in costs and compensation is tied up in a fund, drawn on only for Andrew’s care, which has so far included moving to a home with more space and adaptations made to aid his mobility, and also covers the eventuality that at some point Julie and Rick will no longer be around to look after him. He goes to mainstream school and has a teaching assistant to help him with work. He loves IT, and has a sparkling sense of humour. But the 13-year-old will never be able to live independently.
Around 6,700 people bring medical compensation cases a year. The NHS spends almost £800m annually in costs and compensation, and the Ministry of Justice (MoJ) spends around £19m in legal aid for medical negligence cases, but the access it gives to people for medical negligence is under threat from proposed money-saving reforms.
The changes aim to cut legal aid by £350m by 2015, with funding no longer available for clinical negligence cases other than a few exceptions involving human rights. The MoJ argues that complainants can use no-win, no-free lawyers instead. But, following a review of civil litigation costs last year, a clampdown on incentives for no-win, no-fee lawyers under conditional fee arrangements would also end the payment of success fees. These fees compensate claimants’ solicitors for the cases that earn them nothing.
Taking away legal aid and also ending incentives to take on all but the easiest to prove cases is likely to halve the number of medical negligence cases lawyers can take on, says Peter Walsh, chief executive of the charity Action Against Medical Accidents.
“At the root of the problem is a lack of joined-up government. The Law Society has identified ways of saving £400m without having to cut legal aid, so we hope the government will listen. This is not just about access to justice by families.
“If you take away the ability of patients to challenge the NHS you take away a valuable learning curve for those working in it to address problems.”
The NHS Litigation Authority does acknowledge that legal aid is the cheapest and simplest way to fund cases, and last week its chief executive Steve Walker said there was a “moral case” for it to be retained at least for babies damaged at birth and the catastrophically injured. It’s not yet known how soon any changes will be implemented.
“We’re glad that Andrew will never be able to say to us that we didn’t do all we could to help him,” says Rick. “But it’s obscene that other people in a similar situation might not be able to do what we did because of money. That’s not how a fair society should be, is it?”