Legal leeches are bleeding the NHS

The rise in medical negligence cases is bad news for just about everyone except opportunistic lawyers; No prudent manager would dream of letting a doctor apologise

Mrs S was a dentist until three years ago when a medical accident during a routine angiogram left her unable to use her right hand. She was forced to sell her practice, and she cannot drive or perform simple tasks on her own. She is suing her hospital, and her doctor on the grounds that he never told her of the risk. Her solicitor thinks she could win around half a million pounds.

There has been an explosion in medical negligence cases. The NHS paid out pounds 150m last year, a sum set to rise fast, unless Lord Woolf's current review of civil justice can come up with a way to stem this haemorrhage of money out of the NHS.

Ambulance-chasing solicitors advertise widely. Their posters decorate the walls of accident, emergency and outpatients' departments. "Do You Have A Claim?" they ask the weary queues of waiting patients. There is even an acknowledged medical complaint known as "compensationitis": the patient will not get better until his claim is settled, and that usually takes years.

Nearly all medical negligence cases are conducted on legal aid, so solicitors try to attract poor clients who stand to lose nothing. The big losers are the hard-pressed legal aid fund and the NHS. Lawyers will always gain large fees, while few patients will get anything at all, because only 12 per cent of cases succeed.

The lawyers' gravy train started rolling with the Valium and Ativan cases in the early Nineties, when many claimed they were addicted and suffering withdrawal symptoms. Lawyers assembled a brigade of 17,000 patients to bring a huge group action, which involved 2,000 firms of solicitors getting their noses in the trough, many of whom had never done medical negligence work before. Most of the cases failed, but pounds 35m of legal aid money was paid to lawyers and medical experts. The Law Society, needless to say, takes the view that far too few people have the chance to take their case to court and there should be more, not less litigation.

There is a good reason why most medical negligence cases fail. Patients are, on the whole, in the hands of doctors trying to do their best to make a sick person better. A number of questions arise. How sick was the person anyway? How reasonable was the treatment that the doctor administered? What was the expected risk rate of the procedure? Are doctors never allowed to make mistakes? Surgeons working at high intensity are bound to make some. Does every patient have the right to the very best treatment available all the time? In one sense, of course, they do, and everything in the NHS should be pushing towards the state of the art. But is it right to sue when things go wrong, if it results in less money available to treat other NHS patients?

In the lottery of life, if your child is born with cerebral palsy needing lifelong care, that is a great tragedy. If God did it, then you get not a penny. If, however, you can find some reason to suppose the obstetrician might have noted foetal distress, It Could Be You, and the NHS may have to pay out a seven-figure sum. The child stricken by act of God is just as deserving, but loses in this extravagant lottery. Shouldn't any money available for care be evenly distributed, regardless of fault? Within a public service, it is by no means clear that fault must lead to cash compensation.

Mrs S, like many plaintiffs, is not a greedy woman, but she is very angry. She wants revenge upon the doctor who has partly crippled her, and there is no other way to satisfy her anger than by giving her a day in court where she can confront the doctor, making him and his hospital bleed money in apology.

Hospital complaints procedures are maddening: the first round takes three months to deliver a paltry fobbing-off letter, and the appeals procedure takes another six months. The patient wants an explanation and an apology. Instead, the doctor is warned never to explain, apologise or admit fault. Equivocation, obfuscation, delay and deceit fuel the rage of patients to boiling point.

All Mrs S wanted, she says, was a chance to hear all the details, and get an apology and an assurance that more care would be taken in future. She envisages a hearing with senior doctors and administrators and a chance to see all relevant records. She says her doctor was arrogant, in a hurry, and not listening to her. She wants satisfaction much more than money. But no prudent manager or medical insurer would dream of letting a doctor apologise and therefore concede what might be an expensive case before it even began.

But what if patients had no right to sue the NHS? What if the doctor and hospital stood no pecuniary risk? The quid pro quo would have to be absolute openness at a fair tribunal, where the patient could gain satisfaction. In cases of serious negligence, the doctor might be disciplined, retrained, or struck off. The patient would be assured that something had been done and money would play no part in this remedy.

The Patient's Charter raised expectations and may have contributed to the sharp rise in claims, but it shied away from quality of treatment. If the right to sue were withdrawn, the Charter would need real teeth.

I hear a bristling of the rights lobby against this collectivist, utilitarian solution. If you take away the individual right to sue, doesn't it remove the ultimate sanction that keeps doctors and hospitals on their toes? Yes, but long-drawn-out court cases resolved 10 years after the negligent event are feeble guardians of best practice.

Can Lord Woolf stop medical negligence claims reaching US proportions? If not, we will see a sharp increase in defensive medicine, where doctors treat patients mainly to avoid later court cases. It leads to expensive, painful and unnecessary tests. It prevents innovation, as it is safer for all doctors to do the same thing, whether it works or not. It would be a brave step to remove patients' rights to sue the NHS - and it would have to be met with an openness, humility and willingness to admit fault utterly alien to the medical establishment at present.

So far, Lord Woolf has put forward proposals that are far too timid: small claims would be taken out of courts, and specialist courts would streamline the process. Other reformers suggest that legal aid be paid only to lawyers expert in medical negligence who have high success rates, not to the cowboys who take on no-hope cases.

Lord Woolf is hoping for a new culture where people accept that doctors make mistakes and hospitals are quicker to apologise. But by now it would take far more drastic action to turn back the thundering hooves of greedy solicitors who have found that medical negligence nicely fills the gap left by the fall in conveyancing fees.