Translation Failure – NHS to Pay Brain Injury Claim
The family of a boy born at King George Hospital in Goodmayes Essex in July 2009 is likely to receive a multi-million-pound brain injury compensation payout following a legal victory against the NHS.
The boy was in good health following his birth by caesarean section; however, within 24 hours he had entered a hypoglycaemic state and suffered such severe brain injuries that he now suffers from cerebral palsy, which seriously affects his cognitive and physical function.
The brain injury compensation claim for clinical negligence is a significant legal landmark as it focused on the extent to which the NHS could be deemed responsible for the boy’s condition following the failure of its obstetric and midwifery staff to explain the importance of feeding and the techniques required.
The parents were Tamil refugees from Sri Lanka. The mother was 21 years old when the baby was born. At the time, she spoke only very limited English and was heavily reliant on the services provided by Barking, Havering and Redbridge NHS Foundation Trust to help negotiate the immediate period of postnatal care.
In the High Court, Judge McKenna found that the mother was almost entirely reliant on non-verbal cues in order to understand hospital staff and was “certainly unable to understand anything but the simplest of instructions”.
The judge added, “The sad reality is that [the mother] did not, in fact, ever get any instruction on how to feed properly. Still less did she receive any instruction on what to look out for and what to do if feeding was unsuccessful.”
According to reports the mother had been in significant distress because of her baby’s continuous crying and inability to feed, but, the court was told, the midwives on duty simply tried to reassure the young mother that it was normal for newborns to cry.
The court heard that mother and child were prematurely discharged from hospital and that this, together with problems with feeding, were significant factors in the NHS’s liability for the brain injury compensation claim.
The judge said that the mother “did not and could not reasonably have been expected to have understood” advice offered and it was further detailed that an overnight hospital stay would almost certainly have avoided the boy ever suffering a brain injury as the feeding problems would have, in all probability, been identified.
It was found that medical staff at King George Hospital were negligent in failing to find an interpreter and “effectively ignoring” the young mother’s concerns as they were unable to communicate with or indeed advise her as to how she could best care for her newborn.
This ruling contradicted accounts from NHS staff, who claimed they were accustomed to providing feeding instructions to non-English speakers and had taken adequate and reasonable steps to ensure that the young mother was able to feed her child.
“The reality is that no-one ever in fact gave [the mother] a clear and understandable explanation of the importance of feeding,” said the judge. “In the circumstances, I would enter judgment in favour of the claimant with damages to be assessed,” he added.
Following the ruling, the director of midwifery at Barking, Havering and Redbridge University Hospitals NHS Trust, said, “We would like to say sorry again to [the family] and express our sincere sympathies to them”.
She also said that although the trust had since reviewed its procedures it would be looking to determine whether it could learn further lessons regarding postnatal care.
The sum of compensation awarded is yet to be determined. However, it is likely that the final payout will total several million pounds.
All hospitals and medical institutions, whether state or privately run, have a duty of care to those under their clinical supervision. This is true regardless of whether they are native English speakers or not. As such they have a duty to provide translators at times of critical importance i.e. following the birth of a child.
The same could also be said for those who are visually or hearing impaired as important clinical and care messages need to be communicated and hospital staff must take all reasonable and practicable steps to ensure this happens.
Any failures in this regard could result in injury or illness and, if this happens, liability for clinical negligence compensation claims may be upheld.