How the NHS must take a new approach to clinical litigation - and prove that it doesn't need lawyers to see justice done

A story circulates that a New Yorker once won a court case for loss of extra-sensory perception following neurosurgery. What gave this tale credibility was the fact that the sum involved was just less than the figure used to determine whether an out-of-court settlement is preferable to a trial.

An influential commentator argued that Britain would never follow the American model because its welfare system provided support in the event of a less-than-perfect clinical outcome. But the reality is different. Lawyers openly advertise for clients who feel they have a justified claim against the NHS. No-win no-fee legal contracts will fuel expansion.

The consequences for the NHS could be catastrophic. Already, the backlog of cases total over 1bn in liabilities. This figure will increase. For example, women who develop cervical cancer after an erroneous interpretation of a slide receive compensation despite the fact that the current screening procedure inevitably produces a proportion of such occurrences.

Or consider three deliveries which go wrong. The first results in a brain- damaged child, and the trust eventually admits liability. Compensation will exceed 1m, and highly accomplished clinical expert witnesses will be unproductive for days. The second child suffers the same fate, but no one is judged to have been at fault. This will probably involve even more expert clinical input, big legal fees but no payout. The third results in a still birth which might set the trust back several thousand pounds.

In specialised areas, a small cadre of clinical experts inevitably find themselves disputing each other's professional opinions. Such confrontations militate against shared professional development, and can't fail to foster defensive medicine despite protestations to the contrary.

The present system fails both providers and customers - and it must change. If society is prepared to provide victims of clinical negligence with funds appropriate to their changed circumstances, what is achieved by involving lawyers? Some would argue that litigation for clinical negligence is a valuable quality control. Hopefully, the new emphasis on clinical governance will demonstrate that quality assurance, with emphasis on preventing errors rather than identifying them retrospectively, is a much sounder alternative.