Legal briefing

Negligence claims against the NHS continue to rise inexorably and are expected to cost more than£300m this year.

In 1996 the figure was£70m. About 40 per cent of the money goes to lawyers, leaving only 60 per cent for victims. No-fault compensation, like the scheme which operates in New Zealand, would save vast sums in legal fees and court costs, but would claims soar, costing the NHS even more?

A decade ago the idea was being strongly pushed by the British Medical Association, but after crown indemnity was introduced in 1990 it slipped off the agenda.

Frank Dobson, when he was health secretary, raised it with the health select committee. Now an influential Appeal Court judge who also chairs an NHS trust has floated the idea of a modified no-fault scheme.

Sir Philip Otton, chair of the Royal Brompton and Harefield trust, outlined his proposal in a lecture to the Personal Injury Bar Association.

The scheme would cover NHS hospitals only and would come into operation if 'something went wrong'.

Patients would not have to prove negligence but would have to show that whatever went wrong had caused their injury.

Claims would be investigated by a risk manager who could authorise payments of up to£5,000, or£10,000 with the agreement of the trust board.

Larger claims would go to a Medical Injuries Compensation Authority, operating like the Criminal Injuries Compensation Authority, which could award up to£500,000.

Patients with catastrophic injuries worth more than£500,000 could sue for negligence, but the compensation scheme award would be deducted from any damages.

Sir Philip called on the Law Commission to carry out a cost-benefit analysis evaluating the savings to the NHS, to the legal aid board and to court resources.

Steve Walker, head of the NHS Litigation Authority, warned of the impact of claims on NHS finances.

Now Frank Dobson has moved on, perhaps the authority should sound out his successor.