Legal briefing

The cost of litigation in the NHS is proving a thorn in the sides of the British Medical Association and the doctors' defence organisations, not to mention the House of Commons public accounts committee.

The committee pronounced itself 'appalled' at clinical negligence claims in its report on NHS expenditure in 199798 .

Outstanding liabilities were estimated then at£2.8bn, the MPs were told.

Dr Gerard Panting, head of policy at the Medical Protection Society, says the figure is likely to be£4bn now and could go up to£5bn following the Court of Appeal hearing at the end of February.

This could see a substantial hike in awards for what are categorised as 'general damages'.

These are compensation for pain, suffering and loss of amenity as distinct from the cost of future care and loss of earnings.

These could go up to a maximum of£300,000 from the current£150,000 for the most serious cases.

The£5m claim is no longer unusual. At the time of going to press, a former dancer who was brain-damaged at the age of 27 during her first child's birth and will need round-the-clock care for the rest of her life, is claiming£8m damages at the High Court.

Dr Panting and Dr David Pickersgill, chair of the BMA's medicolegal committee, were about to meet junior health minister Gisela Stuart to discuss whether there might be better ways of dealing with these cases than the traditional litigation system, which is problematic due to the high costs involved.

The Medical Defence Union has also made representations to the government.

Mediation and other nonadversarial ways of resolving disputes are worth exploring: a recent mediation pilot scheme in two NHS areas got few cases, partly because lawyers were unwilling to refer their clients.

One idea is to guarantee lifelong state-funded care for those with the most severe disabilities, rather than a large settlement from which to fund it themselves.