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Written on 10th August 2022 by Richard Money-Kyrle

NHS Resolution’s latest move to offer an ‘alternative process’ for making a valproate injury claim suggests the NHS’s defence team are preparing for high numbers of claims from families of children with severe injuries from negligent treatment with sodium valproate. The DIY-style ‘alternative process’, which is accessed via a link on its website, invites families of unborn babies who were physically and neurologically injured by their mother’s negligent treatment with sodium valproate to put their claim directly to NHS Resolution. Families are reminded that they can instruct their own solicitor if they want to make a legal claim in the usual way, but the ‘alternative process’ does not involve the injured patient being represented by a medical negligence solicitor or obtaining their own independent medical evidence.

At first glance, it might be tempting for parents, who have already been through enough, to skip the process of instructing a solicitor. Government and media hype about medical negligence lawyers and the cost of claims often fails to remind people that their right to specialist legal representation is the very reason that an individual patient in this country can succeed in a claim against the NHS.  A fundamental principle of justice is equality of legal and expert representation.  NHS Resolution’s ‘alternative process’ removes this protection.  When we, as specialist solicitors, agree to take on a medical negligence claim, we are confident that our client has good prospects of settling their claim. There is no cost to our client if the claim does not succeed, and NHS Resolution pays most of the costs if the claim is successful. More importantly, that claim is far more likely to succeed, and to achieve a higher and fairer level of compensation, if the claim has been investigated, prepared, pursued and negotiated by our experienced solicitors working with independent experts.

In our experience, NHS Resolution’s initial response is to reject high value severe injury claims relying on their own experts and interpretation of the facts.  It is crucial to emphasise that the majority of claims we bring on behalf of injured patients succeed even though liability is at first denied by NHS Resolution on the basis of their own expert evidence.  On this basis, we are concerned that families of children who have been injured by sodium valproate negligence who decide to pursue a claim directly against NHS Resolution without help from their own solicitor risk being put off pursuing claims which, if correctly handled, would succeed and result in substantial settlements.  

Apart from the injured child’s family having no independent legal support or expert medical advice to help them make their complex and potentially high value brain injury claim, it is hard to see what is alternative about the ‘alternative process’. The injured child’s family supply their recollection, consent for the NHS legal and medical expert teams to access their medical records and the NHS then investigates and defends itself in the usual way. The family do not get access to the NHS team’s evidence or confidential legal advice. NHS Resolution decide whether to reject or accept the claim, as prepared by the unrepresented family. Either way, NHS Resolution have all the power and the final say.

There is no ex-gratia payment scheme for valproate injuries – all valproate claims are medical negligence legal claims

Anti-epileptic drug, sodium valproate, has long been known to cause physical and neurological injury to the unborn babies of mothers who take the drug during pregnancy. You can read more about valproate injury and the victims’ campaign for justice here.

The shocking extent of the harm suffered by children and families affected by valproate negligence and the healthcare system’s failure to respond to concerns when they were raised was finally acknowledged and exposed in the IMMDS ‘Cumberlege’ Review.

A key recommendation from the review’s final report was that an independent redress agency should be set up to make payments to people who have been injured by valproate. The government rejected this recommendation and that remains the position today. This means that the only way anyone who has been harmed by valproate can claim compensation from the healthcare system for their injury is by making a medical negligence claim against the GP or NHS Trust which prescribed valproate to their mother. Any successful claim will depend on the patient’s (usually helped by their solicitor) ability to prove negligence, such as in prescribing, failing to warn and obtain informed consent, failing to follow up, failing to offer alternative treatments and in very rare cases failing to put the patient on a pregnancy prevention programme (PPP), and that correct treatment would have avoided the injury.

These are complex medical negligence claims involving lifelong physical and neurological disability, which will inevitably also involve complex arguments about evolving and difficult areas of medicine and law. We strongly advise families of injured children to seek advice from claimant (for the patient) specialist medical negligence solicitors, before attempting to make a claim against NHS Resolution directly as a litigant in person (without a solicitor). If NHS Resolution accepts your claim you could receive significantly less than your child’s entitlement to full compensation, but you also risk losing your child’s opportunity to make a claim.

Who are NHS Resolution?

NHS Resolution is the NHS’s defence organisation. Their role is to protect and defend the NHS from medical negligence claims made by patients who have been injured as a result of negligent treatment by NHS trust staff and GPs. One of their key objectives is to reduce NHS litigation, by cutting the number of medical negligence compensation claims against the NHS which are brought via court proceedings. They are working to cut the cost of claims to the NHS, using ‘innovative’ methods which increasingly involve gaining direct access to unrepresented injured patients and their families, and what their recent annual report describes as ‘settling’ claims without payment of compensation.

Despite their stated commitment to resolving claims fairly, their primary role and duty is to protect and defend the NHS. NHS Resolution cannot offer independent and impartial advice to injured patients and their families about their entitlement to claim against the NHS, the likelihood of succeeding with a claim or the amount of compensation they might receive if the claim is correctly valued by a claimant specialist solicitor.  In any other type of legal claim, to have one party’s solicitor advising the other party about their rights would be regarded as unethical, because of the inherent conflict of interest.

Families of valproate-injured children should be aware that the alternate/direct claim process offered by NHS Resolution does not offer an ex-gratia, no-fault or shortcut method for injured children to obtain compensation. The government rejected the IMMDS Review’s recommendation for a valproate compensation scheme. The only way that injured patients can claim their entitlement to compensation is via the existing clinical negligence system.

NHS Resolution’s alternative claims process invites families who have been injured by valproate to attempt to handle their own child’s claim against their GP or NHS trust, via NHS Resolution. Claimants who use this option will not have legal representation but NHS Resolution’s website makes clear that claims made in this way will be fully investigated (defended) by NHS Resolution and the NHS’s legal team in the same way that any medical negligence claim by a patient is defended when it has been properly prepared by a solicitor based on specialist legal and medical expert advice.

Claims for lifelong disability require specialist handling and may need the approval of the court

Families should know that there are serious potential pitfalls to starting a serious medical negligence claim without independent specialist legal and medical expert advice. Any mistakes that are made by well-meaning but non-specialist families can also be difficult and sometimes impossible to undo at a later date. Parents who attempt to make a claim for their seriously injured child as a ‘litigant in person’ are still bound by the law and the rules of the court. Even if the claim is accepted and settlement offered by NHS Resolution on the basis only of information from the family, that settlement may grossly undervalue their permanently injured child’s claim.

Permanent physical injury and even subtle neurological injury have consequences which will affect the injured child for the rest of their life. Our specialist lawyers work with experts to assess accurately and understand each injured client’s lifelong needs, such as for care, educational support, therapies, specialist equipment and adapted housing, and the financial impact of not being able to reach their expected potential at school, higher education and work. Each client’s claim is carefully valued to claim their full entitlement to the compensation they deserve.

Every settlement that we achieve for a child or for an adult whose neurological disability leaves them unable to manage their financial affairs, is then presented, in accordance with the law, for approval by the court.

For 30 years, Boyes Turner’s clinical negligence team have been recognised for our expertise and outstanding results in severe and catastrophic injury claims. We are highly experienced in securing high value settlements in claims against NHS Resolution. Where we secure an admission of liability from NHS Resolution on behalf of the negligent hospital or GP, we obtain substantial early interim payments. These early payments ease our clients’ financial hardship and help meet their immediate needs, whilst we work towards settlement of the claim. We usually secure faster and significantly larger interim payments for our clients than NHS Resolution are willing to provide voluntarily to families without legal representation.

Boyes Turner’s clinical negligence team are currently helping families make valproate injury medical negligence claims. You can talk to one of our specialist solicitors, free and confidentially, to find out more about making a claim by contacting us here.