The UK maternity care crisis: £5bn in avoidable damages claims

Every year, around 1,800 UK children are diagnosed with cerebral palsy. It’s estimated that at least one in every twelve of those diagnoses occurs because of negligence in maternity care settings, with lives permanently impacted by the knock-on effects of underfunded and understaffed NHS services.

For the last decade, formal reviews have repeatedly raised inadequate training and insufficient staffing levels as key issues affecting NHS maternity care. But rather than driving change, Care Quality Commission (CQC) figures show that past recommendations have failed to lead to better outcomes:

• One in four core NHS maternity services across the UK is currently rated as ‘inadequate’ or ‘requiring improvement’;
• Despite a government pledge to reduce brain injuries at birth by 50 percent between 2016 and 2025, the number of new NHS obstetric injury claims for cerebral palsy and brain damage was the same in 2022 as in 2016;
• At least 2,473 UK families have sought compensation for cerebral palsy and brain damage caused by maternity medical negligence since 2012.

Alongside the far-reaching consequences figures like these have on people’s lives and livelihoods, ultimately a failure to adequately invest in maternity services costs the system more in the long-term. NHS obstetrics damages payments for cerebral palsy and brain damage totalled more than £656m in the financial year ending 2022 – and have sat at an average of around £460m annually since 2010.

Almost £5bn has been needed to compensate those affected, but only £5m in NHS investment has been dedicated to reducing brain injuries at birth. If more funding were dedicated to resolving persisting issues, the upfront cost of providing more staff, more training and ultimately more services would surely soon be negated by a reduction in the amount of compensation needed to pay to victims of inadequate care.

More importantly, long overdue improvements to maternity care would mean a reduction in the number of children born with avoidable brain damage – and a greater sense of trust and safety for new mothers putting their care in the hands of those services.

Issues in NHS maternity care

The number of women and pregnant people who were always able to get staff help when they needed it during labour dropped from 72 percent to 63 percent between 2019 and 2022, according to the latest CQC maternity survey. That means almost 40 percent of those going through labour experienced points where professional support was necessary, but unavailable. The number of mothers always able to get help in hospital after giving birth, when they needed it, dropped from 62 percent to 57 percent in the same period.

Victoria Vallance, CQC’s Director of Secondary and Specialist Care, says: “This reflects the increasing pressures on frontline staff as they continue in their efforts to provide high quality maternity care with the resources available. It also echoes what maternity staff attending CQC’s roundtable event last year told us about the exceptionally demanding circumstances in which they are operating, and the need for greater support to help manage the challenges they face.”

In particular, better communication is needed with mothers about the risks and benefits of having a vaginal birth or caesarean section when a larger than average baby is suspected. In 10 Healthcare Safety Investigation Branch (HSIB) reports, there was no evidence of a discussion with the mother taking place regarding the risks of shoulder dystocia (difficult or obstructed labour) and what this meant for labour and birth.

Given the figures, it isn’t surprising that the number of mothers and pregnant people reporting full confidence in the staff delivering their care has also been on a downward trend for several years in the CQC’s surveys. Almost 20 percent in the latest survey said they weren’t given appropriate advice and support from midwives and hospitals at the start of their labour, while 23 percent say they were not taken seriously when raising concerns during labour and birth.

The NHS Resolution review, entitled Five years of cerebral palsy claims, reviewed 50 instances of cerebral palsy related to clinical negligence between 2012 and 2016, and highlighted many issues that are still present today despite the years of opportunity for progress that have since passed. ‘The most frequent contributing factor to the failures in care delivery was an individual not having adequate skills.’

Errors in foetal heart rate monitoring were common, cited in 64 percent of claims. Moreover, 91 percent of these involved cardiotocography (CTG) usage errors, such as CTGs not being started at the right time and staff being too slow to act on their results. Errors like this could and should be resolved through improved training and reduced pressure on staff.

Other factors cited as contributing to care failures include:

• poor communication;
• inadequate knowledge of the individual receiving care;
• inadequate staffing levels;
• excess workload pressures;
• equipment issues;
• poor teamwork; and
• guideline/policy issues.

With the 2022 CQC maternity survey finding that almost one in four mothers were not taken seriously when raising concerns, and with growing numbers unable to access help when they most need it, it is clear that there is more work to be done to turn these failings around and prevent harm.

It is hugely frustrating to see continued common themes in negligence cases. The hope of every family whose child suffers from severe brain injury due to negligence is that lessons will be learnt and other families do not have to go through the same trauma. Sadly, there seems to be a failure in NHS learning dissemination and training responses that focuses on the repeated errors made to reduce occurrence.

The birth of a baby and their neonatal care is an extremely vulnerable time, there is a devastating impact on families if the trust placed in medical care systems and clinical staff is broken by the provision of negligent care.

Experiences are worse still for Black and Asian women, a subject explored more in The Impact of Racism in NHS Maternity Care. The inequality is evident across a range of labour and birth outcomes, with our birth injury and medical negligence senior associate Abigail Ringer noting that “according to the 2011 census, ethnic minority groups made up just 14% of the population in England and Wales, yet among the families I support, over 30% are from ethnic minority groups. The fact that this 30% comes from 14% of the population suggests to me that something is not right.”

On the 23 February 2022, the government announced a new Maternity Disparities Taskforce to explore the reasons for the disparities in maternity care, and to address poor outcomes for women from ethnic minority communities and those living in deprived areas. An initiative that gives hope to many that ongoing care failings are not simply being forgotten.

The reality of negligence for families adjusting to cerebral palsy

The impact of mistakes made during pregnancy and birth, as well as substandard postnatal care services, is one felt by many parents. Between 2019 and 2022, RWK Goodman sought compensation for 39 families who felt that avoidable birth injuries like cerebral palsy were the result of negligence.

“We are a family who have been directly affected by a birth injury. Our daughter Daisy suffered severe and irreversible brain damage as a result of negligence. She has asymmetric dystonic/spastic cerebral palsy caused as a result of an acute hypoxia during her delivery. If our daughter had been delivered earlier she would not have suffered severe brain damage and would have had a normal outcome in life,” said an anonymous RWK Goodman client.

This is the tragic reality for many, yet this suffering and the need for related cerebral palsy claims and other brain injury claims could have been avoided had more investment been put into maternity services throughout the years.

The NHS has launched a range of initiatives aimed at avoiding stories like these – such as Better Births – and in 2021, the UK government pledged to spend £3m more to reduce brain injuries at birth. Despite all of this, the data shows that there is still a long way to go.

Five years after the launch of Better Births, a progress update was shared. Midwife Annie Francis, former CEO of Neighbourhood Midwives noted that:

“Despite the huge amount of effort, time and money that has gone into introducing continuity of care as national policy, the overall impression is of an extremely mixed picture. There are Trusts who have relished the challenge and made significant progress, while others (the majority?) still struggle to reach the initial target of 20% of women receiving continuity of care. The concept of ‘most women’ has been downgraded to mean 51% (that isn’t ‘most’ in my book) and the postcode lottery of access to continuity of care teams is alive and well across the country. Taking a snapshot of where we are now, even the most generous minded would hesitate to call it an unqualified success.”

Lives changed and funds saved, if real investment was made in care

Between 2012, when the NHS Resolution review began, and 2021, there were 158 clinical claims settled with the NHS for which the value of each individual claim was over £15m and the primary injury was cerebral palsy or brain damage.

Across all claim values, NHS figures note that 265 new cerebral palsy and brain damage obstetrics claims were brought forward in 2021, and a further 188 in 2022. Moreover, 188 is the same number of claims as was brought forward in 2016, the year that the government’s Better Births initiative was launched. Overall:

• 2,473 claims have been made regarding cerebral palsy and brain damage due to medical negligence since 2011/12; and
• almost £5bn has been needed to compensate for the life-long impact of maternity care failings.

One freedom of information request revealed that NHS trusts in regions across England paid out more than £4.3bn in damages across 1,441 cerebral palsy and brain damage obstetrics claims between 2011 and 2021, with Barts Health NHS Trust, and Mid and South Essex NHS Foundation Trust paying out the most, namely a combined total of £211.5m across 56 claims.

A separate request found that among 2,456 cerebral palsy and brain damage claims paid between 2012 and 2022, the average total damages sum paid was £1,858,079, bringing the total cost of maternity care negligence to an estimated £4.56bn in the last decade for these two injury groups alone. The same request also found that claims for Erb’s Palsy, which can arise in births involving shoulder dystocia, totalled over £111m in the same period.

Based on current cost estimates, just £551m of investment would be enough to train 50,000 new nurses and midwives and a further 5,000 new health visitors over the course of five years, which is less time than has passed since the Better Births initiative was announced.

Just one third of the £4.56bn that has been needed in compensation over the last decade – around £1.51bn – would have been enough investment to improve care standards across all areas of the NHS with 110,000 newly trained staff in the roles mentioned.

There have been many investigations and reports which conclude that there is a need for improved maternity services. The key factor underpinning this is of course financial resources and staffing of maternity units and community midwifery care.

Until the NHS has the financial and management resources to invest in its maternity units, clinical staff and their training and supervision, the tragic cases of maternal injuries, serious harm to babies and fatalities will continue. This is surely an unacceptable state of affairs in a country which places huge pride in its NHS.

Kerstin Scheel is a partner at RWK Goodman specialising in birth and maternal injury claims, cerebral palsy and catastrophic injury cases
www.rwkgoodman.com