Indefensible legal claims for mistakes by doctors and nurses are being contested unnecessarily by "macho" NHS lawyers, the head of the Law Society warned as the bill for damages exceeded £1bn for the first time.
Linda Lee, the society's president, told The Independent on Sunday that court battles – and costs – over medical blunders were being drawn out by health trusts when they should settle early "for the good of the patient". She warned that plans by Kenneth Clarke, the Justice Secretary, to scrap legal aid for clinical negligence cases will limit access to justice for thousands of victims of botched operations and misdiagnosed illnesses.
Ministers are determined to halt "a rising tide of litigation" in the NHS, and will publish plans to abolish legal aid for all clinical negligence cases within weeks. Patients will be told to use "no win, no fee" lawyers instead.
The total annual bill for clinical negligence claims leapt by a third in 2010-11 to £1.04bn, up from the £770m paid out by the NHS Litigation Authority in 2009-10. However, legal costs on top of this amount for such cases topped £286m. One in 10 people who undergo treatment in hospital are victims of medical accidents, according to the Law Society.
Mrs Lee told The IoS: "One of the difficulties has always been that indefensible cases have been fought, and that increases costs. It is a sort of macho thing, [saying] 'I don't want to be seen to be culpable'. It is in everyone's interest to settle as quickly and as fairly as possible."
Last year, a quarter of all clinical negligence claims were funded by legal aid, with a third of legal aid cases brought on behalf of children. Mrs Lee said the removal of legal aid would increase "hurdles" for claimants. "I don't believe that people should say 'this is too expensive for the Government so they don't deserve their chance'."
She warned that mistakes could continue to be made if legal cases are not brought, as they put negligence in the spotlight. "Quite often changes have been brought about because of litigation. That might be the wrong way of doing things, but that's what happens. Litigation may be the only way to highlight negligence." More than 20,000 people have backed the Law Society's Sound Off for Justice campaign against legal aid cuts.
Andrew Lansley, the Secretary of State for Health, has ordered a further emphasis on safety to prevent medical mistakes from happening in the first place. But he also told MPs last week: "We need to try to offset a rising tide of litigation and cost associated with clinical negligence cases."
A Department of Health spokesperson said: "There are a number of reasons costs may have increased over the past few years, such as the cost of legal fees and the effects of court judgments that set legal precedents on how settlements should be assessed."