Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
The account from Nicki Lyon in the Times earlier this month, in the article entitled “Baby deaths: “We were told it was just one of those things” is devastating to read however, to medical negligence specialists whose job it is to hold the healthcare providers to account and secure damages to assist with the future care of birth injured children, it is an all too familiar story.
The statistic that 71% of babies might have had a different outcome with different care is one that must urgently be improved upon. Another extraordinary statistic is that in almost a quarter of instances parents were not involved or even made aware of the fact that reviews were being conducted after a baby had died or sustained severe brain injury during labour at term. If one extrapolates that from the 1,123 babies that fulfil the “each baby counts” criteria, this means that hundreds of parents are being left completely in the dark after their baby has either died, been stillborn or sustained severe brain injuries. As someone who campaigned hard for the duty of candour and bangs the drum for patient involvement, this statistic is unacceptable.
But let’s focus on the positive: there are key recommendations for clinical care around workloads; the need for clear escalation policies (so that “all members of staff, irrespective of their role or grade, should be empowered to inform senior midwives, managers and consultants when concerns arise both within their own speciality but also on behalf of another speciality”).
The report highlights that communication “cross site” which clearly outline the roles and responsibilities of each site where a woman is receiving care and guaranteeing ready access to a woman’s notes whether they be handheld or electronic must be improved. There must be a clear policy to ensure local guidelines are updated and within the national guidelines. Any migration (which I read as deviation) from safe practice must be recognised and corrected.
In relation to anaesthetic care the recommendations are around the degree of urgency with which transfer to theatre should be made.
The report is also aspirational, whilst acknowledging the improvements year on year, it sets out new recommendations around the barriers that have been identified to reporting cases which means involving neonatal units and local review with appropriate reporting tools. All positive.
Let’s hope that the latest report’s recommendations are acted upon and the numbers of parents who are placed in the awful position of having to seek advice from lawyers, such as the birth injury clinical negligence specialists at Kingsley Napley starts to dwindle. I am confident that every solicitor who deals with cerebral palsy claims and the consequences for families of caring for a child with cerebral palsy, would welcome these improvements if they reduce the incidents.
Whilst no medical practitioner ever sets out to do harm, the report’s findings show that there is still much work to be done, some of which is quite straight forward and practical. The report shows that these steps can and should reduce the cases arising. As and when they do arise it becomes the job of specialist lawyers to step in and try to disentangle the medical facts and provide the legal support to establish if there is a claim for a failure in the standard of care.
If you, or a member of your family has experienced a similar situation and would like some advice, please visit our Medical Negligence and Personal Injury page or email firstname.lastname@example.org
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