After the Maternity and Newborn Safety Investigations (MNSI) process, can you claim for medical negligence?

The process of starting a claim and the MNSI process are entirely separate.

The purpose of a legal claim is to seek monetary compensation for the injured child in order to provide for their additional needs over their lifetime.

The purpose of an MNSI investigation is to examine the medical care, processes and systems in place relating to the critical incident and determine whether lessons can be learnt in order to improve medical care (both locally and nationally) in the future.

The MNSI report does not seek to apportion blame or even determine whether failures directly caused injury to a patient, it primarily seeks to identify where care levels fell below expected standards and whether lessons can be learnt from this. Any “lessons learnt” will be shared with the Trust involved and they will be expected to implement any safety recommendations made.

It is important to note, however, that if the MNSI investigators determine that there were failures in the medical care that likely lead to patient harm they will refer the case to the NHS legal team under the “Early Notification Scheme”. The NHS lawyers at NHS Resolution will then, if agreed with the family, investigate the case from the perspective of medical negligence. The ENS team will usually instruct independent experts to determine if the care was both negligent and causative of serious harm to the patient with a view to making an early admission of liability and early initial payment of compensation funds.

You do not need to wait for the MNSI process to be completed or the ENS team to complete their investigation before you instruct solicitors. Your solicitor can commence a claim against the hospital Trust while the MNSI process or ENS process is ongoing.

Your solicitor can assist with the MNSI process in advising you about the report and factors and questions for you to go back to the MNSI investigator with. Your solicitor can also liaise with the ENS lawyers during their investigation and share information which may assist them.

We advise clients to engage a solicitor early on so that there is clear information and support throughout the MNSI investigation and start early investigations into a legal claim, should you wish to consider that.

Find out more about how a legal claim is investigated here.

After the MNSI report is completed it will be sent to both you and the Trust. Individual reports are not published on the MNSI website. Instead all reports are collated and considered and Safety Spotlight reports published nationally.

The MNSI will refer the matter, in some cases, to the Early Notification Scheme (ENS) legal team. The lawyers will then determine whether to commence an investigation as to whether there has been medical negligence. This investigation is supposed to be relatively swift, however it is our experience that it can be extremely lengthy and families often wait a very long time for an outcome of their decision.

We therefore usually suggest that you start your own investigation into the claim at an early stage to avoid delays.

The MNSI investigation may reveal significant failures in care as part of their report.

In investigating a clinical negligence claim your solicitor will need to instruct independent medical experts to advise on the standard of care provided. As part of this your solicitor will send the MNSI report to the experts to consider and the report is often helpful, as it will have a full chronology of the medical records and will have summarised witness statement evidence from the staff involved.

Once all expert evidence has been received and considered the next step will be to serve a pre-Court action Letter of Claim on the Trust. This will set out all the allegations of negligence and we now frequently refer to conclusions reached in the MNSI report to assist with this.

If you are successful in bringing forward a clinical negligence claim for you or your child, the next phase of the claim will be to value it. Quantifying a claim is a complex process involving specialist experts in prognosis, care, accommodation, therapies and medical needs, including psychological support.

Each case is valued individually and the value of the claim will depend on many different things including life expectancy, where you live (London will be much more expensive for example) and the level of need (for example if 2:1 or 1:1 care is needed).

Interim payments of compensation will be made whilst we assess the value of the claim and work towards a final settlement meeting with the Defendant. We have many examples of cases we have settled on behalf of children and some examples can be found here.

In the majority of cases the child will lack capacity to manage their own affairs and a Deputy will be appointed by the Court of Protection to manage finances in the long term.

You can read more information about our Compensation Protection Team here.

Each case is individual and it will be for the Coroner to determine whether an inquest hearing is required and the scope of any hearing.

The Coroner will usually wait for the MNSI investigation to be completed before listing an inquest hearing and the report will be adduced into the evidence considered by HM Coroner.

There may also be a PMRT report if the matter concerns the death of a baby. The national Perinatal Mortality Review Tool (PMRT) aims to support objective, robust and standardised reviews of deaths of babies (up to 28 days post birth) to provide answers for bereaved parents about why their baby died.

For much more detail about the inquest process you can read further information here.