07/02/2013 11:13 GMT | Updated 09/04/2013 06:12 BST

Bankrupting the NHS?

In a recent interview on BBC Radio 4's Today programme, Christine Tomkins, chief executive of the Medical Defence Union, claimed that compensation payments for medical negligence were placing an unsustainable burden on the NHS.

But rather than addressing issues such as patient care or learning from recurring mistakes, Ms Tomkins focused on repealing the Law Reform (Personal Injuries) Act 1948, which allows the court to ignore the care the NHS could provide the claimant when assessing an award of damages.

The law currently allows the court to assess care provision on a privately-funded basis. While the cost of care is usually the largest category of loss to be claimed, Ms Tomkins fails to address a fundamental point: care in clinical negligence cases is usually the responsibility of local authorities (not typically a party to the litigation) rather than the NHS.

Repealing the 1948 Act will not reduce the amount the NHS is required to pay to meet claimants' future care needs. In the majority of cases involving catastrophic injuries - such as birth injury, acquired brain injury and spinal injury claims - the claimant requires social rather than nursing/medical care. This distinction is important. If a claimant requires medical care, this will be provided, free of charge, through local NHS services, usually a Primary Care Trust. If the claimant requires daily assistance with personal care and hygiene, transfers etc, then this will be classified as social care by the NHS and responsibility for the claimant's care will fall to his local social services. Social care is usually means-tested and a local authority can charge an individual for the care provided.

A typical future care claim will comprise the lifelong cost of employing a team of carers. Sometimes, where the claimant has both medical and social care needs, this can be provided through NHS Continuing Care. However, securing NHS funding is by no means straightforward and is not guaranteed. Indeed, as noted in the NHS Confederation Briefing (October 2012), "The distinction between health and social care makes little sense to the individual service user, whose needs cannot be easily categorised into two separate groups. Given that even frontline staff also have trouble understanding the distinction between health and social care, it may be too much to expect service users to do so if they have more than one type of need."

So, who should fund a claimant's social care package? This issue has been considered by the court on numerous occasions and the law is clear: the wrongdoer pays. In other words, the defendant NHS Trust or in the case of private care, the defendant doctor. To deny the claimant the ability to recover the cost of future care will leave him reliant upon the continued availability of local authority care which can vary year to year depending on local government policy and budgetary constraints. These issues are becoming increasingly prevalent as a result of the current austerity measures. Even if the claimant is lucky enough to receive local authority care it's usually insufficient, inconsistent and unreliable with family members often called upon to supplement it. In my experience, claimants and their families feel they have to constantly argue their case to maintain even the most basic level of care.

While the cost of settlements has increased over the years - mostly due to advances in medical treatment for individuals with brain or spinal injuries and the associated increase in life expectancy which affects the size of the award - to say the ever-increasing settlements will bankrupt the NHS is simplistic. The NHS Litigation Authority routinely settles larger cases on a combined lump sum and periodical payments basis, which means the claimant will receive an annual payment to fund care for the remainder of his life. This allows the NHS Litigation Authority to control its future expenditure, while providing the claimant with certainty of a lifelong annual payment. Global settlement figures reported by the press will include the total value of the periodical payments for the claimant's estimated life expectancy. Therefore, the true value of claims cannot be determined until the claimant's death which may be some years before or after his estimated life expectancy.

So, what can be done to reduce the amount the NHS Litigation Authority pays in damages? The answer lies in training and robust investigation procedures to identify and remedy shortcomings and failings of medical treatment. Any attempt to reduce the NHS's bill for negligence payouts should focus on learning from mistakes to improve patient care rather than attacking the funding of future care which, given the global figures involved, will inevitably be headline-grabbing. Claimants who have sustained catastrophic injuries are some of the most vulnerable members of society. It's only right, and just, that the wrongdoer pay for a claimant's reasonable future care needs.