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Poorer families are being denied millions of pounds in compensation from the NHS for maternity care failings compared with wealthier families, The Independent can reveal.
Families whose babies experience brain damage due to negligent maternity care can receive multimillion-pound payouts to cover costs relating to the child’s future care and accommodation, based on their medical need.
But a separate element covering the child’s predicted “loss of future earnings” is calculated on the basis of their family’s existing income and education levels, meaning that more affluent families get more cash.
In a recent settlement, a child was awarded £1.5m for loss of future earnings, based on a predicted annual salary of £50,000 over 30 years. Yet another child, whose parents had a combined income of up to £45,000 at the time of his birth, received less than £500,000.
Critics have condemned the system as “unfair”, highlighting the fact that it gives the least financial support to the families who “need it the most”, and have called for earnings payments to be linked to the average wage.
MPs promised reform two years ago after admitting that “the child of a cleaner receives less compensation than the child of a banker”, but no action has yet been taken.
Money remains tight for Claire Keer and her son Zach Eagling, 13, who lives with cerebral palsy due to care failings at his birth, despite their having received a £5m compensation settlement.
The money, which the family was awarded with support from the charity Action Against Medical Accidents, has gone towards buying an adapted one-storey home, an adapted car, and £10,000 electric wheelchairs, which have to be replaced as he grows, as well as ongoing physiotherapy and speech therapy. But Ms Keer, 43, from West Yorkshire, is conscious that the money needs to last for Zach’s lifetime, including paying for someone to care for him when she is no longer able to.
“It’s not an endless pot of money. If we had received more compensation, I would have hired more care and had more help. I might even have been able to afford respite care – it would be nice to have a break sometimes,” Ms Keer said.
The total the family received could have been substantially higher if Zach’s parents, who have since separated, had held different jobs when he was born. Ms Keer had been working as a betting shop manager, while Zach’s father was a chef, giving them a combined income of around £40,000 to £45,000. Although they were not told exactly how much the loss of future earnings element added to their compensation package, it was likely calculated at between £250,000 and £500,000.
But it could have been millions more if they had been in receipt of higher salaries. “I think it’s strange how they work it out,” said Ms Keer, who had to give up work to care for Zach full time. “It doesn’t seem right that the families getting more are the ones that are better off in the first place. Jobs change all the time, and I don’t think what you do has any bearing on what your child is going to do.”
Two-thirds of NHS spending on compensation cases goes on maternity claims, according to NHS Resolution, the body that deals with compensation awards. Payouts for maternity negligence cost the taxpayer £2.6bn in 2022-23, the latest figures show, with the total cost of harm, including loss of earnings, valued at £6.6bn. Both figures were up on the previous year.
The Medical Defence Union (MDU), which represents doctors in negligence cases, has described the system as “flawed”. It believes loss of earnings payments should be capped at three times the average wage, annually – and that “parental education, earnings or wealth should play no part in the assessment of damages awarded to minors”.
Dr Mike Devlin, head of professional standards and liaison at the MDU, said parliament needs to step in to change the “unfair” system.
“If a wealthy family gets a bigger lump sum, they can get better quality home adaptations; they might be able to afford holidays or respite breaks. This is not possible for families on lower incomes,” he told The Independent. “The future loss of earnings component [of the compensation payout] feeds into the patient’s quality of life – [and] it’s the groups who are worse off who are probably in greatest need of the financial support.”
Jo Cruse, founder of the maternity reform campaign group Delivering Better, said women from disadvantaged groups – including ethnic minority and teenage parents – are likely to have the lowest incomes, but also statistically more likely to experience harm during birth. “These women are already at a disadvantage, and it is unacceptable that the current compensation system compounds these disparities further,” she added.
In other countries, such as Australia, compensation for loss of earnings is capped at two to three times the national average wage. In a 2022 report, MPs examining the UK system agreed there was “manifest unfairness” that “contradicts the basic principle of equality that sits at the heart of our health system”.
They called for earnings calculations to be scrapped for all cases involving children under 18, and for future compensation payouts to be standardised against the national average wage in order “to prevent unjust variability”. But the issue appears to have been sidelined since the general election, with the MDU warning that taxpayers remain in a “costly limbo” until it is resolved.
Helen Lewis, principal lawyer in clinical negligence at the law firm Slater and Gordon, admitted it was “an imperfect system” but said that changing it would “challenge the underpinning of our legal system”.
“In families where parents have graduate jobs and high earnings – and they would have expected their child to have the same – they will want the payment to fairly reflect the loss of their child’s full potential. It would be unfair if it didn’t.” She emphasised that the loss of future earnings element typically makes up less than 5 per cent of the total settlement figure in clinical negligence cases.
An NHS Resolution spokesperson said: “Awards of compensation for a child are approved by the courts and therefore are governed by legislation or common law rules.”
Source: independent.co.uk
