Solicitors face scrutiny in NHS litigation reform Clinical negligence lawyers face closer scrutiny and benchmarking as the government seeks to crack down on claims against the National Health Service.

A damning National Audit Office (NAO) report last week found the cost of clinical negligence claims was spiralling, with solicitors blaming the NHS's 'culture of secrecy'.The report found that since 1995 and the introduction of the National Health Service Litigation Authority (NHSLA), the number of claims and success rates has risen year on year.

The total of claims settled in 1997-98 was 50 million, rising to 107 million the next year and 386 million in 1999-2000.Explaining the rise by claiming that 'people are becoming more litigious', the report said that in 44% of all claims with settlements of more than 10,000, legal costs exceeded settlements.While recognising in particular that franchising has improved the quality of case handling, the NAO recommended that both the Legal Services Commission and the NHSLA 'develop quantified measures of performances for the solicitors they instruct or fund, and incorporate these into selection procedures, contracts and monitoring arrangements'.It said the NHSLA could use information it holds to 'benchmark solicitors' performance and set targets'.

The NHSLA has been auditing the lawyers it uses and the report recorded that 'some firms have been confirmed as working effectively, and others have been asked to remove named partners from the work, and to make other improvements to their operations'.

Paul Balen, head of clinical negligence at Nottingham-based Freethcartwright and a member of the expert panel advising the NAO, was cautious about closer monitoring.

'I cannot see how this can possibly work in practice,' he said.

'The LSC and NHSLA will not be able to review individual cases, as this will be a blatant breach of human rights and client confidentiality.'He added that the NAO's figures were 'historical', based on cases before the implementation of the Woolf reforms and the introduction of clinical negligence panels.

Before then, costs were also high because of the culture of secrecy adopted by many hospitals, he said.

The report suggested more use of mediation.

David Body, head of clinical negligence at Irwin Mitchell, who represented the families of 83 sufferers of variant Creutzfeldt-Jakob disease, said: 'Although I am a qualified mediator, I have never been asked to mediate in a negligence case.

I think that we should follow the US experience, where mediation is very productive in these cases.'Victoria MacCallum