The NHS will have to spend more money settling lawsuits involving negligence during childbirth after a supreme court ruling that lawyers said puts right a “historic injustice”.
The court ruled on Wednesday that children in England who suffer catastrophic injuries while they are being born can claim damages for future earnings they would otherwise have had.
The ruling on “lost years damages” means that children whose life expectancy is shortened can recover compensation for being unable to work.
It comes amid mounting concern at the rising cost of medical negligence to the NHS in England – its liabilities have hit £60bn – much of which is due to errors made during childbirth.
“The supreme court today has put right an historic injustice which set injured children’s rights in negligence cases at a lesser level than those of an adult,” said James Drydale, the lawyer for a girl known only as CCC.
She suffered serious brain damage in Sheffield in 2015 after being deprived of oxygen as a result of mistakes by the midwife overseeing her mother’s labour. The girl has cerebral palsy, cannot eat, walk or talk, and is only expected to live until she is 29.
The high court in 2015 awarded her parents a £6.8m lump sum 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 pursue compensation for earnings she would never have as a result 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. The five justices who heard their appeal upheld it by a majority of four to one.
Drydale said: “This ruling will make childbirth negligence cases more expensive for the NHS to settle. It will mean more compensation.
“Undoubtedly, there will be more compensation for the NHS in future in cases where children have had their life shortened as a result of being a victim of negligence.
“It’s unconscionable that children have been prevented from pursuing such damages until now.”
The court’s ruling overturns more than 40 years of legal practice since the high court ruled, in the case of Croke v Wiseman in 1981, that children could not make “lost years” claims.
“I welcome the excellent reasoning of the law lords, who have set out that the court of appeal’s decision in Croke v Wiseman is inconsistent with other case law. They have overturned this out of date and unjust decision,” added Drydale.
The high court will now rule on the family’s bid to receive £800,000 in further damages. That is to reflect what their daughter would have earned while working and receiving a pension, based on average earnings and average pension sums, between the ages of 29 and 85, which is the average life expectancy for a woman in the UK.
Paul Whiteing, the chief executive of the patient safety charity Action Against Medical Accidents, said: “This judgment will undoubtedly add to an already significant cost of clinical negligence. But as parliament’s public accounts committee recently said, preventing harm from happening in the first place is the most effective way to reduce the widespread impact of clinical negligence.”
Jodi Newton, the head of birth and paediatric negligence at Osbornes Law, said: “This is a monumental ruling for the many children and young people left with serious and life-changing injuries as a result of medical negligence.”
A Department of Health and Social Care spokesperson said: “Our sympathies go out to the victim and her family in this tragic case. We have noted the ruling of the supreme court and will carefully consider its findings.”
