The NHS will have to spend more money settling lawsuits involving negligence during childbirth after a Supreme Court ruling which lawyers said was a “historic injustice”.
People who suffer catastrophic injuries during childbirth in England can receive compensation for their future earnings, a court ruled on Wednesday.
A ruling on “lost years compensation” meant that children with reduced life expectancy could receive compensation for being unable to work.
It comes amid growing concerns over rising medical negligence for England’s NHS – whose liabilities have hit £60bn – much of which is due to errors made during childbirth.
“The Supreme Court today righted a historic injustice that placed the rights of children injured in negligence cases below those of adults,” said James Drydale, an attorney for one of the girls, known only as CCC.
In 2015, her mother was deprived of oxygen and suffered severe brain damage due to mistakes by a midwife supervising her labor in Sheffield. The girl has cerebral palsy, can’t eat, walk or talk and is expected to only live to be 29 years old.
In 2015 the High Court awarded her parents a sum of £6.8million and £350,000-a-year payments to cover the costs of their daughter receiving 24/7 care from two carers. But it also ruled that CCC could not continue to compensate her for the earnings she never received because of her injuries.
Her family took that decision to the Supreme Court using a “leapfrog appeal”, meaning it went straight to the UK’s highest court. Their appeal was upheld by a five-judge four-to-one majority.
Drydale said: “This ruling makes maternity negligence cases more expensive for the NHS. It means more compensation.
“Undoubtedly, there will be more compensation for the NHS in the future in cases where children have their lives cut short as a result of neglect.
“Preventing children from sustaining such risks until now is unconscionable.”
The court’s ruling overturns more than 40 years of legal practice since the High Court ruled in 1981 that children could not make “lost years” claims in the Croke v. Wiseman case.
“I welcome the excellent reasoning of the Law Lords who set out that the Court of Appeal’s decision in Croke v Wiseman contradicts other case law. They overruled this old and unfair decision,” Drydale added.
The High Court will now rule on the family’s bid for £800,000 in further damages. That means average earnings and average pension amounts between the ages of 29 and 85 reflect what their daughter earned while working and receiving a pension, which is the average life expectancy of a woman in the UK.
Paul Whiting, chief executive of the patient safety charity Against Medical Accidents, said: “This judgment will undoubtedly add to the already significant cost of clinical negligence. But as Parliament’s Public Accounts Committee recently said, preventing harm in the first place is the most effective way to reduce the wider impact of medical negligence.”
Jodi Newton, head of birth and child neglect at Osborne’s Law, said: “This is a monumental verdict for the many children and young people who have been left with serious and life-changing injuries as a result of medical negligence.”
