If failings in medical care aren't highlighted, children will die

If access to justice is
to be anything other
than a popular phrase,
the statutory bereavement damages award must rise immediately.

Health Secretary Jeremy Hunt, though, has proposed
a scheme that deliberately
takes advantage of the sickeningly low amount of damages awarded in England and Wales for the wrongful death of a child, which stands
at just £12,980.

The law setting out
the criteria for claiming a bereavement damages award is contained in the Fatal Accidents Act 1976. The government has set the award for the loss of a close family member, such as wife, husband, son, or daughter, at the pitiful amount of £12,980.

Supposedly, a bereavement award serves as recognition of grief and a financial token or public recognition that a death was wrongful. No amount of money can compensate for the loss of a child, but for the government to suggest that
the wrongful death of a child is one which is only worth a token amount is disgraceful. There is, however, an urgent practical need to immediately increase the level of the award.

Under the pretence of capping lawyers' fees, Hunt is proposing new legislation which will mean that if a hospital refuses to accept responsibility for the part it played in, say, a child's death, and the family has to take the hospital to court to obtain justice for the child they have lost, the costs of the case the family will be able to recover should they win will be capped to a percentage of any damages awarded.

I have represented
bereaved families who have
lost children because of negligent care for more than
20 years, and I can say that
these cases are never, ever motivated by compensation. The families want answers and an acceptance of responsibility from the doctors who treated their son or daughter for the part that they played in the death. They also want to make sure that such a tragedy never strikes another family again. Sadly, if a hospital will not accept responsibility for a death, the only route to
justice is through a civil
claim for damages.

The problem is that if a trust unreasonably decides to fight a family's case to a contested trial, which may last several days and involve a number of experts, the claimant costs could easily
top £200,000 if they win. The trust could settle the case at any stage and protect its position
on costs by making an early part 36 offer. If costs are capped at, say, 50 per cent (we still don't know where the cap will fall)
of the present bereavement damages award, the family would only be able to recover £6,490 against the actual cost
of £200,000. Hunt's scheme will effectively end claims brought by families on behalf of children killed by hospital negligence, such as those highlighted by the Morecombe Bay NHS Trust baby death scandal, by creating a two-tier system of justice: one for the rich and one for the poor.

A recent survey by RTS Media, which was endorsed by patient charity Action Against Medical Accidents, illustrates the point. The survey found that, should a cap on legal fees be introduced, 83 per cent of specialist medical negligence lawyers are likely to opt against representing families with claims worth
less than £25,000 in damages. This effectively affects the majority of claims involving deaths of children caused by hospital negligence.

If I sound angry, it's because
I am. I am astonished that such
a scheme should be proposed by the very health secretary who set up the independent Morecombe Bay enquiry,
which exposed failings that
led to the deaths of one
mother and 11 babies, and found maternity services
beset by a culture of denial, collusion, and incompetence. Only recently, Hunt blamed
the official responsible for investigating complaints
about NHS failings of 'faceless bureaucracy' and inhumane treatment of bereaved
relatives of victims. If that is not hypocrisy, I don't know what is.

If failings in medical care are no longer highlighted by families, as they are now, doctors will continue to make mistakes and children will die.
If Hunt wants to initiate a scheme which uses the monetary value of a claim arising from the wrongful
death of a child as the benchmark for its importance, then the statutory amount fixed for bereavement damages must be increased right away from its present level of only £12,980 to at least £100,000. If it is not,
and Hunt has his way, families
of children killed by negligent care will be forever denied access to justice. SJ