NHS Resolution's Early Notification (EN) Scheme update lacks evidence of early financial help for families after birth injury

The NHS’s defence organisation, NHS Resolution, has published its latest report on the Early Notification (EN) Scheme.

The second report: The evolution of the Early Notification Scheme promotes NHS Resolution’s efforts to reduce the length of time that the NHS takes to investigate and respond to maternity safety incidents which have resulted in brain injury to babies. The report suggests that NHS Resolution is using the EN Scheme to rally its defence teams earlier, to identify and investigate potentially high value birth injury claims more efficiently and at lower cost, but provides little evidence that this leads to better or quicker financial support for the families of these severely injured babies. As with previous NHS Resolution reports, the low numbers of meaningful admissions of liability, and the complete absence of reported data relating to interim payments, suggests that NHS Resolution continues to gain direct access to (legally unrepresented) families after birth injury, gathering their evidence to help defend a later claim, but fails to give them substantial financial support or advise them to seek independent specialist legal advice.

The report also fails to provide an updated full analysis of maternity claims defended within NHS Resolution’s Early Notification (EN) Scheme. NHS Resolution say that a report containing the full analysis will be published next year. Instead, the latest report examines only 20 cases in which the NHS defence team have fully admitted liability (fault) for the child’s injuries, and explores more general maternity safety themes taken from a ‘pilot’ sample of 93 (out of over 800)  birth injuries which were referred to the NHS’s defence solicitors for investigation during the second year (2018/19) of the EN scheme. Amongst the commonly reported maternity safety themes contributing to HIE brain injury, such as issues with delayed birth, fetal heart monitoring errors, infection and vaginal breech birth, NHS Resolution highlighted growing concerns about brain injuries following poor management of impaction of the fetal head (IFH) at caesarean section, and negligent antenatal counselling and recognition of uterine rupture during VBAC labour.  

We share the concerns expressed in The Association of Personal Injury Lawyers’ (APIL) response to the report:

“The aims of the scheme are commendable, but our concerns with how it operates still remain. In particular, there is no indication that families are being informed that they have a right to independent legal advice. The need to take advice from an independent and specialist solicitor cannot be emphasised enough, given the life changing tragedy caused where a baby suffers a brain injury. And the reported adherence to the duty of candour in the report does not reflect the experience of many families. APIL members have reported that families are either not told that an investigation is happening, or that they are not as involved as they should be.

It’s disappointing that this report is three years overdue and is not the full evaluation we were expecting. This is apparently to be conducted next year and we hope it will provide proper insight into whether families truly benefit from the scheme. Meanwhile, maternity scandals in NHS Trusts are coming to light one after the other, demonstrating a widespread crisis. An overarching, strategic approach to learning from failures in care is critical to avoiding heartbreak for more families.”

We strongly advise parents who have been contacted by NHS Resolution or HSIB after the birth of their baby to contact our birth injury team immediately for free, confidential advice to safeguard your child’s right to substantial compensation.

Birth injuries highlighted by NHS Resolution’s second Early Notification (EN) Scheme report

NHS Resolution admitted liability for EN Scheme babies with severe or moderate HIE in only 20 cases

The second EN Scheme report says that as at 31 March 2022, NHS Resolution had identified 439 claims over the past 5 years that met the EN revised criteria. These are babies who have suffered severe harm from birth injury and are expected to have lifelong, complex care needs, who may be entitled to high value financial compensation payments. The report says that these cases have included a formal apology with early financial assistance for care, in some cases.

The report says that by 31 May 2020, admissions had been made on 65 eligible EN cases. However, only 25 of these were full admissions of liability in which it was admitted that the negligent care caused the injury and therefore accepted the baby’s right to be compensated for their injury. Five of these cases were excluded as they did not involve HIE brain injury. This means that between 2017 and 2020 only 20 families with babies whose birth injuries met the EN criteria received a full admission of liability from NHS Resolution.   

The report says that, of these 20 cases:

• 90% of the babies had grade 3 (severe) hypoxic ischaemic brain injury (HIE)
• 85% of the 20 babies had a diagnosis of cerebral palsy;
• 40% of the babies died before the age of two years as a result of their HIE brain injury;
• 10% suffered Erb’s palsy from shoulder dystocia at delivery, in addition to severe HIE brain injury;
• 70% of the babies were born by emergency caesarean section, with:
  • 14% suffering impaction of the fetal head (IFH) at caesarean section;
  • 15% were born after an attempted assisted vaginal birth (forceps or ventouse).
• 90% of the 20 birth injuries for which liability was admitted involved errors with fetal heart rate (FHR) monitoring, including:
  • incorrect CTG interpretation;
  • delays in escalation;
  • delays in taking action when CTG monitoring or intermittent auscultation reveals an abnormal FHR; 
  • problems with risk recognition.
• 90% of all 20 babies’ neonatal MRI brain scans showed evidence of acute profound/near total hypoxic insult (sudden severe drop in oxygen to the unborn baby during labour).
• Families of the injured babies were involved in investigations of the incidents in 18 out of the 20 cases.
• In 95% of cases the healthcare organisation complied with its duty of candour.

The report does not say when or whether any of the brain-injured children or their families received interim payments or whether their families were legally represented.

NHS Resolution admitted liability in these 20 cases within 18 months of the babies’ dates of birth, apparently reducing the NHS defence legal costs by two thirds. NHS Resolution acknowledged that liability may be admitted, at a later stage and at greater cost, in other cases where negligence or causation is initially denied.   

Brain injury to 24 babies involved impaction of the fetal head (IFH) at caesarean section

NHS Resolution’s report highlighted ongoing concerns about the number of babies being born with HIE after their head was found to be impacted (IFH) or wedged within the mother’s pelvis during caesarean section. The Early Notification (EN) Scheme’s first report found that IFH at caesarean section contributed to the harm suffered by 9% of babies born with brain injury from HIE. The latest EN update report identified 24 EN Scheme cases in which IFH at caesarean section contributed to the baby’s injury.

In addition to brain injury from HIE, babies experiencing IFH suffered from subdural, intracranial or subgaleal brain haemorrhage, skull fractures or death. IFH was more common where the unborn baby was poorly positioned.  In nearly a third of these cases, the labour had been augmented (boosted) with syntocinon. In 55% of cases, the impaction occurred before the second stage of labour. The most common reasons for caesarean births, in the cases where IFH was later found to be present, were fetal distress, failure to progress and failed attempts at assisted vaginal birth. A consultant was present at only 50% of these difficult births.

NHS Resolution found that varying, multiple and often incorrect manoeuvres were used whilst attempting to deliver these babies, reflecting the lack of consensus and guidance about the safest and most effective steps to take. NHS Resolution found that UK-based research has previously reported that maternity clinicians have limited experience of IFH, and that current training is inadequate and inconsistent. 

Brain injury to babies during uterine rupture in vaginal birth after caesarean section (VBAC)

Another concern related to babies who suffered brain injury during vaginal birth after caesarean section (VBAC). In 60% of the births in which uterine rupture occurred, NHS Resolution found that mothers had received substandard information antenatally about the risks of VBAC, affecting their ability to make an informed choice of delivery.  In some cases, delivery plans changed, contradicting the mother’s documented wishes for her labour or mode of delivery. In some instances, no senior obstetrician was involved in the decision to induce labour.

Augmentation of labour with Syntocinon (oxytocin) is known to increase the risk of uterine rupture. NHS Resolution found that 80% of the women whose VBAC labours were both induced and augmented with oxytocin suffered uterine rupture. In 80% of these incidents delays occurred in identifying the uterine rupture, with delays in acting on the identified rupture in 75% of cases.

Scar dehiscence (breakdown) and uterine rupture can be missed if the three classic signs of pain, vaginal bleeding and fetal heart rate (FHR) abnormalities aren’t apparent. However, FHR abnormalities on the CTG are common in uterine rupture, and were present in two thirds of these cases. NHS Resolution found that, in any event, the main reason for delayed delivery in these time-critical cases was a delayed response to FHR changes, which should have led to earlier delivery.

NHS Resolution’s Early Notification scheme update – no evidence of early financial help for most families after birth injury

The low number of admissions of liability and lack of data about interim payments in NHS Resolution’s second Early Notification Scheme report continues to raise questions about whether NHS Resolution’s earlier identification and investigation of severe HIE birth injury incidents is intended to deliver earlier meaningful financial support to the injured child and their parents. 

Our own experience of securing high value compensation for brain-injured children in claims arising from maternity negligence is that 50% of our successfully settled cases began with a denial of liability from NHS Resolution.

We strongly advise parents who are contacted by the NHS’s defence team at NHS Resolution, or HSIB, after the birth of their baby to seek independent advice from specialist claimant (for the patient) birth injury solicitors.Any information that you give to NHS Resolution (even informally) may be relevant to later court proceedings. NHS Resolution helps the NHS defend medical negligence claims to reduce the amount of compensation paid to injured patients. They cannot provide you with impartial (unbiased) advice about your child’s right to compensation or whether a claimant specialist solicitor would advise you to pursue a compensation claim.

Boyes Turner’s specialist cerebral palsy, birth injury and neonatal injury lawyers are committed to ensuring that children who have been severely injured as a result of medical negligence, and their families, receive their entitlement to full and meaningful compensation.

You can speak to one of our experienced birth injury team, free and confidentially, to find out more about HSIB, the Early Notification Scheme and your child’s claim for compensation,  by contacting us here.