Neil Rowe, head of practice at Maulin Law, considers how to reduce the incidence and financial impact of obstetric claims.
High-value obstetric claims – often arising from catastrophic brain injuries to babies – constitute a disproportionately large share of the cost of clinical negligence. Tackling this challenge demands collective effort from clinicians, patient safety teams, indemnifiers, and legal professionals. By understanding how these claims arise, learning from past events, mitigating costs, and preparing for future reforms, we can collectively reduce their incidence and financial impact.
The scale and sources of the problem
In England, maternity claims represent around 10% of the total number of clinical negligence claims received by NHS Resolution – in recent years approximately 1,200 out of 12,000 claims annually. However, based on the 2023/24 provision, maternity accounted for nearly two-thirds of the total of £58.5 billion. The cost of a single high-value obstetric claim can exceed £30 million, where lifelong care is needed for a child with cerebral palsy or hypoxic brain injury. Fortunately, in the private sector, such claims are exceedingly rare and unlikely to exceed the limits of indemnity.
Common incident types include antenatal screening failures, delays in recognising foetal distress, poor management of labour, failure to escalate care, and misinterpretation of cardiotocography (CTG) traces. These are often compounded by systemic issues such as inadequate staffing, inconsistent training, or suboptimal communication.
Learning lessons and enhancing patient safety
Improving maternity safety starts with delivering quality care consistently. Staff education and training are foundational. Simulation training for obstetric emergencies, CTG interpretation workshops, and multidisciplinary team exercises help build clinical confidence and cohesion. Understanding patient expectations and being proactive in addressing concerns is key.
Additionally, attention must be paid to health inequalities and perinatal mental health. Evidence shows that women from minority ethnic backgrounds and deprived areas face worse outcomes; whilst perinatal mental health increasingly relates to catastrophic outcomes. Maternity services must be inclusive, culturally competent, and resourced to meet diverse needs.
Should something go wrong, it is crucial that the statutory Duty of Candour is fully implemented alongside the Patient Safety Incident Response Framework (PSIRF). Transparency, accompanied by timely apologies and clear explanations of the steps being taken to prevent recurrence, can help preserve trust and even reduce the likelihood of litigation. Proactive and inclusive complaints handling should reduce claims. Support for staff involved in adverse outcomes is equally vital, continuing to address any remaining cultural issues and protecting staff wellbeing will help reduce complaints and claims.
Mitigating the financial impact
The specialist lawyers who practice in this area play a pivotal role in determining the number of high-value maternity claims made and their outcomes. Claimant lawyers familiar with these types of claims will filter out those which have insufficient grounds to proceed. If a claim does eventuate, lawyers on both sides will engage highly respected independent liability experts and counsel to analyse whether the claim is likely to succeed or fail at trial. The objective of the defence lawyer is to defend the defensible and promptly settle the meritorious.
When it comes to quantum, such claims typically involve young children with profound neurological injuries requiring lifelong care, adapted accommodation, equipment, assistive technology, and a range of therapies. Again, claimant and defence lawyers will engage quality experts and counsel to assess what is a reasonable need and cost, analyse what a court is likely to award, and hopefully negotiate a reasonable settlement.
Schemes like the Early Notification Scheme (ENS) introduced by NHS Resolution offer an opportunity to intervene early to investigate and provide interim support, including rehabilitation services. Early financial help can transform family circumstances, reduce adversarial tensions, and reduce overall costs.
The future of maternity care
The spotlight has been shone on maternity care in recent years due to the number of scandals reported. Ambitious change is therefore underway in several areas.
Lord Darzi’s recommendations for the 10-year NHS plan include re-engaging staff, empowering patients, simplifying care delivery, leveraging technology, and reforming structures to enhance efficiency. Implementing these recommendations in maternity care will improve patient experience and reduce adverse incidents.
The government’s review of the duty of candour, whose call for evidence closed last year, is expected to provide greater clarity, potentially decreasing complaints and claims.
The NHS Resolution’s Maternity Incentive Scheme has produced enhanced performance, linking compliance with safety actions to financial rewards. It is hoped full compliance will be achieved as such incentives can drive accountability and promote shared learning, thereby reducing adverse incidents.
Looking ahead, the Avoiding Brain Injury in Childbirth (ABC) programme has moved to national rollout in September this year after a successful pilot involving 12 maternity units alongside the Royal College of Obstetricians and Gynaecologists, Royal College of Midwives and The Healthcare Improvement Studies Institute. It is designed to close the safety gap by equipping multidisciplinary teams with enhanced skills to rapidly identify foetal distress, act decisively in obstetric emergencies (including complex C-section scenarios), and reduce variation in outcomes across trusts. With a dual focus on evidence-based training and teamwork, ABC aims to ensure that even lower-performing units can achieve results comparable to the top 20% nationally. Its implications extend beyond clinical practice – this is a strategic, system-wide quality improvement programme with the potential to reshape incident investigation, family involvement and reduce future litigation.
Technological advances – such as electronic health records (EHRs) and artificial intelligence – offer the potential for improved decision support, real-time monitoring, and data-driven risk prediction in maternity as well as other areas of medicine. The extra £10 billion earmarked by the chancellor in the Spending Review will hopefully accelerate implementation; however, whilst it is hoped that these tools will reduce adverse incidents and therefore claims, they do not come without their own risks.
Sustainable change will also depend on workforce investment. It is hoped that the 3% NHS budget increase for the next three years just announced by the chancellor will assist with the recruitment and retention of ultra-sonographers, midwives, obstetricians, and neonatal specialists.
The future of maternity claims
Given the scale of the problem, wide-ranging legal reform is being debated.
The National Audit Office (NAO) investigation this autumn into clinical negligence costs will review the increase in long-term liabilities and annuities and so will be particularly relevant to maternity litigation costs and may spur policy shifts.
There are calls to repeal section 2(4) of the Law Reform (Personal Injuries) Act 1948, which permits the recovery of private care costs, the most expensive aspect of these high-value claims, often worth up to £300,000 a year for life. Repeal would mean that the claimant would have to fall back on statutory funding to provide such care, which would be controversial given the NHS caused the need in the first place and social care is drastically underfunded.
Renewed debate around limitation periods for bringing claims might arise. Limitation is often disapplied in these cases and historically it can take many years for a claim to be notified. Whilst the legal system must strike a balance between justice and finality it would be a significant change to prevent the most vulnerable from bringing a claim.
No-fault schemes (as in Sweden or New Zealand) are under discussion. While politically complex, these models offer the potential to balance fairness with fiscal responsibility. However, the UK economy is very different to those adopters and while maternity claims as a discrete type of claim might be more suitable than the remainder, a no-fault scheme appears unlikely to be introduced.
Less far-reaching changes might lead to incremental savings. Changes to the discount rate (used to calculate future losses) if rates of return improve, will trim the contingent liability, but they fluctuate. Control of legal costs in these higher-value claims through mandatory budgeting would help, and it would not be impossible to introduce fixed recoverable costs for some aspects, for example pre-action, but cost reform appears to have stalled recently.
Reducing high-value maternity claims is not simply a legal or financial objective – it is a moral and professional imperative. Every claim represents a tragic story of profound loss, affecting families, clinicians, and entire organisations. Progress depends on open learning, targeted investment, and legal evolution. With shared vision and commitment, we can make maternity care safer; only time will tell if there can ever be claims reform.
