The Right to Choose?

16 May 2017

Following the recent press reports about the Shrewsbury Baby Deaths Scandal it would have been hoped that perhaps that was as bad as it could get for the NHS. 

Unfortunately negligence in a maternity setting remains to frequent to not be investigated.  The problem is that many of these instances of negligence could easily have been avoided.  These are not 50/50 decisions but rather incidents where standing back from the treatment provided an observer must ask ‘why did you do that, the treatment is so obviously deficient?’

Let us not get too excited however, as thankfully we have an extremely good and safe NHS.  However maternity negligence hits the headlines because it is extremely emotive and also for the Trust involved extremely expensive.  Awards of damages are never about punishing the Trust, they are about ensuring that the injured patient is provided for in their needs for life, which may in many cases be significantly shortened by the negligence committed.

A useful anecdote when thinking are damages too high, is to consider the general damages that are awarded.  These are the only compensatory damages for injury.  If a baby is injured and birth and develops cerebral palsy with very severe brain damage, the maximum they will be awarded for the injury is £337,700.  I certainly would not surrender my enjoyment of life for that amount.  Any other money is for the needs for life.

If the question is what can be done differently there are three key developments that could vastly reduce birth injury.

  • GBS Testing – Group B Streptococcus (GBS) is a naturally occurring gut infection that if passed to the baby at delivery can have a host of devastating impacts including stillbirth and if delivered successfully brain injury including meningitis.  Transmission of GBS can be prevented by provision of IV antibiotics in the hours prior to birth.  GBS carriers can be identified by a simple test which costs about £30.  Despite the clear benefits it has recently been confirmed again that it is not financially appropriate for this test to be done on the NHS!  Lots more information can be found at   There also needs to be far greater education in the NHS about GBS as for example in a case that CLS are instructed in despite a positive GBS test the antibiotics were still not administered and the client delivered stillborn.


  • Follow the birth plan – far too frequently the established and agreed birth plan seems to be abandoned when admitted to hospital.  Montgomery v Lanarkshire determined that a patient has rights as to autonomy and to be informed and consulted in the decision making about their treatment.  When this involves pregnancy and the delivery of their child, there is nothing more important to a parent.  If a parent has expressed a particular wish that is agreed as being safe, do not change the birth plan without their consent.  It is not for instance acceptable to require a patient to undergo vaginal birth after caesarean section.  If they express they want another caesarean section they are entitled to have one (Nice CG 132).  At CLS we are instructed in a case where in these circumstances the birth plan was disregarded and the client was born with a birth injury causing cerebral palsy.


  • Earlier Caesarean Sections - Caesarean section is major surgery but it carries similar risks to a vaginal birth and is probably safer for the baby in distress.  There are times when it is inappropriate to keep pushing for natural birth.  When that happens simply adding more syntocinon will not improve the prospects of natural birth.  For example heavy meconium show is an indication of distress and needs very careful monitoring and if necessary a change of approach.  Again at CLS this is too close to home, being instructed in a case where these very facts led to stillbirth.

We rightly pride ourselves in the UK as having a good NHS.  All medical lawyers would encourage it becoming safer.  We are in a time of change where NHS Resolution and the Medical Indemnity Providers seem more concerned about legal costs than patient safety. 

The root cause of the problem is avoidable harm.  Taking the avoidable harm out of the system will vastly reduce the burden on the NHS.  Reduce the risks and reduce the harm.  Why Guess?

The Medical and Serious Injury Team at Curtis Law is led by Jerard Knott, Associate Solicitor (APIL Senior Litigator).  We are committed to promoting Patient Safety. The team only acts for Claimants and is dedicated to providing a client care centered high level of service, providing the best possible advice and maximising damages.  The department acts on a large number of fatal (including representation at Inquests) and high value cases.  The department regularly advises on cases with valuation exceeding £500,000.  We can be contacted on 01254 297130 or