The RCOG has now published its full Each Baby Counts report, following its analysis of over 700 cases of stillbirth, neonatal death and severe brain injury in term babies in 2015.
The Each Baby Counts programme reflects the RCOG’s commitment to halve the number of babies who die or are left severely disabled as a result of preventable incidents occurring during childbirth at term by 2020. By collating the data from local investigations carried out by maternity units across the country and analysing them at a national level, RCOG has identified common themes and made evidence-based recommendations for action at key stages and in critical areas of care. If implemented, RCOG’s recommendations should improve the quality of maternity and neonatal care and reduce the unacceptable incidence of harm.
At Boyes Turner, we couldn’t agree more. In 2015, 1 in every 635 babies born at term (at least 37 weeks gestation) in the UK, fulfilled the criteria for Each Baby Counts:
The report highlighted the complex nature of maternity care, identifying over 3800 critical contributory factors across the reviewed year’s cases. No baby was affected by one factor in isolation. On average there were six contributory factors for each baby.
This complexity and the interplay between multiple levels of failure, on a system and professional team level as well as an individual level, was not reflected in the majority of local investigations, 91% of which did not involve external panel members, 66% of which did not include the parents, 32% of which did not include neonatologists and 23% of which aimed their recommendations for improvement solely at individual members of staff.
As specialists in cerebral palsy and birth trauma cases, this merely confirmed what we know to be true. The parents of our brain-damaged baby clients are often frustrated and angered by the extent to which the hospital’s investigation of the maternity and neonatal care that the family received fails to address their concerns or admit to the true cause of their baby’s injury. As lawyers, we are often frustrated by the hospital’s investigation report’s avoidance of key medical issues, such as causation of the baby’s permanent brain damage, which cannot be addressed properly without the involvement of a neonatologist or other suitably qualified paediatric or neurological expert.
Of the contributing factors identified by the Each Baby Counts panel, failures in fetal heart monitoring affected 409 babies, with commonly occurring themes of suboptimal care presenting an alarmingly similar picture to those highlighted by the Confidential Enquiry into Stillbirths and Deaths in Infancy (CESDI) report published in 1997. At that time, CESDI recommended regular training in the use of electronic fetal monitoring, simple guidelines on the interpretation of electronic fetal monitoring and guidelines on appropriate management and lines of communication in situations where the CTG is abnormal. Twenty years later, despite structured training programmes and NICE intrapartum guidelines, the Each Baby Counts report revealed persisting themes with electronic fetal monitoring, including failings in initiating, interpreting and escalating the findings of CTG monitoring appropriately. The RCOG called for continued efforts by the research community to find more robust methods for intrapartum assessments of fetal well-being, recognising that reliance on fetal heart-rate changes in complex, high risk situations is proving inadequate. Meanwhile, healthcare professionals were reminded of the importance of taking into account the full clinical picture when reviewing a continuous CTG.
Human factors (such as poor communication between or within professional teams, lack of team leadership and lack of situational awareness) affected 352 babies. Neonatal care was also one of the most significant contributory factors, given the fact that 80% of the babies reported to Each Baby Counts had either suffered a severe brain injury or died within the first seven days of life. In the cases in which the Each Baby Counts panel neonatologists had enough information to review, they found that 55% of the babies might have had a different outcome with different neonatal care.
The report included examples of cases where the outcome to the baby could not have been avoided. These included cases of appropriately treated placental abruption in a low risk pregnancy and a uterine rupture, recognised and acted upon immediately on the mother’s attendance at hospital in circumstances where she had been counselled antenatally about the risks of uterine rupture in vaginal delivery following a previous caesarean section. In cases such as these, the report emphasised the need for maternity care providers to carry out a “robust, thorough, open and honest review”, recognising that a high-quality transparent review will enable parents to gain better understanding that the care was appropriate, making it less likely that they will blame or lose faith in the system.
Overall, however, in 74% of the babies reviewed, at least one panel reviewer believed that different care might have made a difference to the outcome.
The RCOG has restated Each Baby Counts’ commitment to monitor and report on stillbirth, neonatal death and brain injuries. Boyes Turner welcome the RCOG’s commitment to facilitate learning from these tragic events in the hope that it will bring about change.
NHS Resolution has published the findings of a five-year review of cerebral palsy claims, Five Years of Cerebral Palsy Claims: A thematic review of NHS Resolution Data.
The review looked at 50 maternity incidents which took place between 2012 and 2016 and led to successful claims. It was restricted to cases in which legal liability had been admitted. By definition, these involved errors which should have been prevented and, if properly analysed, would reveal lessons to be learned.
Sadly, the lessons it revealed reflected recurrent themes within maternity care, echoing the findings of many previous reports. The key lesson from the review seems to be that if the NHS wants to see improvements in maternity and neonatal patient safety and a reduction of avoidable harm, with a consequent reduction in these high value claims, it must be willing to face up to why these events are still being allowed to occur and take responsibility for bringing about change. The lessons are readily available but does the NHS really want to learn?
The Department of Health has set out its intention to halve the rate of stillbirths, neonatal and maternal deaths and brain injuries that occur around the time of birth by 2030. To do so, it has mandated a change of culture that will transform the NHS from a blaming to a learning organisation. However, despite the many opportunities it has had to learn from the critical findings of several previous initiatives and reports, including Each Baby Counts and the Morecambe Bay Investigation, the recent thematic review found that, “unfortunately, the evidence suggests there has been little improvement in these areas in recent years….This review adds further weight to these significant findings and makes recommendations which should be acted upon urgently so that further reports do not find similar conclusions.”
The review identified recurring themes in the clinical care and the serious incident (SI) investigation which followed it in each of the 50 cases. It found that contrary to recommendations by the Serious Incident Framework and the Care Quality Commission, many families were not fully involved or invited to contribute to the investigation process or to meet with staff before the report was finalised. Some were not even informed that an investigation was being carried out. Good practice requires parents to be given an apology, an offer of support, an explanation of the facts as they are known at the time and to be kept updated and involved in the investigation as it progresses. The theme of communication with patients carried through to clinical care, where the quality of information provided to enable the patients to give informed consent was routinely found to be lacking.
SI investigation reports were often limited to a timeline of events and a description of what happened. They failed to examine the deeper or system-wide causes of the incident. Very few involved independent external investigators.
Whilst many of the trusts used root cause analysis (RCA), a recognised methodology for investigating the causes of an incident, they tended to focus too much on the actions or omissions of one individual, without questioning why the incident happened or was allowed to happen. Where errors are treated as isolated mistakes on the part of individuals, the system failures which allow them to happen remain in place. Opportunities for learning are missed and similar incidents can happen again. Claimants are left feeling dissatisfied by the investigation which fails to provide answers to their questions. The investigations under review fell far short of providing the “logical, fair, open” approach and “just or fair blame, culture” that RCA methodology was designed to encourage.
The SI investigation action plans and recommendations were also criticised for their focus on maintaining the current situation, for example by reminding staff members to comply with current policy or guidelines. If nothing changed as a result of the SI investigation, staff who had failed to follow guidance on the occasion that gave rise to the injury would probably do the same again when presented with similar circumstances.
The thematic review recommended:
In relation to clinical care, fetal heart rate monitoring was an area of concern. The review recognised that whilst an individual’s misinterpretation and other errors relating to CTG use were commonly described as the root cause of the incident, there were often other organisational, systemic and cultural factors which should have been considered as additional root causes. Individuals were blamed for the entirety of the incident when multiple missed opportunities often contributed to the injury.
Women at high risk or who became high risk during labour were not monitored by CTG. Uninterpretable traces were explained away by false reassurance and a wait-and-see approach which wasted valuable time before irreversible hypoxia ensued. Failings in the multidisciplinary teamwork necessary to ensure prompt escalation and quick action were not identified as root causes in the SI reports which focussed solely on the failure of the midwives.
Other areas of concern in clinical care related to breech births, where lack of experience in handling unplanned, vaginal breech births (which are usually delivered by elective caesarean) has left junior obstetricians lacking the necessary skills to deliver an unexpected breech baby safely. Unplanned breech deliveries are often handled by registrars, out of hours, without a consultant present and formed a disproportionate number of the cases under review. Obstetric staff were found to be working independently before having completed sufficient training. Trusts were recommended to review the training they provide, particularly as 29 out of 50 of the SI Investigation reports included recommendations that the staff involved in an incident should undergo training. The review recommended that multi-professional learning should take place, enabling teams that must work together in an emergency to do so in practice.
Following the outcome of the Personal Injury Discount Rate consultation, The Personal Injury Discount Rate: How Should It Be Set In Future the Ministry of Justice has invited comments on its proposed draft legislation before Parliament enacts it as law.
The draft legislation is designed to give effect to the government’s intention to amend the basis on which the Lord Chancellor sets the personal injury discount rate. Since 1998 the rate has been set in accordance with the principle laid down by the case of Wells v Wells. In that case, the House of Lords based the rate by which a claimant’s lump sum damages should be discounted to allow for investment income over the course of their lifetime, on an assumption that claimants are very risk averse investors. For nearly two decades the rate has, therefore, been set largely by reference to Index Linked Gilts (“ILGs”), very low risk and very low income-producing government stock.
Following the recent consultation, the Ministry of Justice concluded that whilst everyone would agree that personal injury claimants are more risk averse in their investment behaviour than other investors, it is unrealistic to assume that they will be advised to adopt a “very risk averse” investment strategy with their compensation. Legislation is, therefore, required to reset the legal parameters within which the Lord Chancellor and the panel of experts who will now assist him, can set the discount rate in future.
If Parliament passes this proposed amendment to the Damages Act 1996 the discount rate will reflect the rate of return that the claimant could be expected to receive from a low risk, diversified portfolio. The Lord Chancellor will aim to set a rate which a properly advised recipient of a lump sum of damages for future financial loss could be expected to achieve if he or she invested the lump sum in a diversified low risk portfolio. If the rate is correct, the lump sum and its income should meet the losses and additional costs that the compensation is designed to cover on time and the damages should be exhausted at the end of the period for which they are awarded, but not before. The Lord Chancellor must consider the investments that are available and actual investments made by claimants, and must make allowances for taxation, inflation and investment management costs.
The proposed changes to the law will not affect the underlying principle of the law of damages, which is that claimants should be compensated in full for the losses they have suffered as a result of the injury caused by the defendant. If properly pitched, the discount rate is designed to ensure that the claimant is neither under nor over-compensated.
Once the proposed changes in the law have been enacted by Parliament, the Lord Chancellor will then reset the discount rate applying the new statutory basis for his decision. On current indicators, the new rate is expected to be somewhere between 0% and 1%, a small rise which will be to the detriment of claimants but not so high as to take damages for future financial loss back to their pre-March 2017 levels.
At Boyes Turner we specialise in securing maximum value compensation claims for severely disabled clients. Having established liability, we can arrange for compensation to be paid in the best way to ensure maximum rehabilitation, early accommodation, specialist equipment and care provision. With basic needs in place our lawyers work with financial experts to structure the remaining compensation in the most appropriate way to provide security for the future, including the use of tax free, life-long periodical payments. Our Court of Protection experts provide ongoing assistance to maximise grants, benefits and provide for the future. Our SEN team can also assist in securing specialist educational placements and support, according to the individual needs of each client.