The latest bright idea from Polly Toynbee is that we shouldn't sue the NHS when they irretrievably screw up a life through negligence because....well, that bit is rather left unsaid. We're in that penumbra of It's The Wonder Of The World and we should dance in the Olympic Stadium in praise rather than critique in any manner.

As the NAO points out, the costs of such negligence have risen substantially in recent years. Those costs are not quite as Polly, who presumably has read the report, manages to mangle: 

But one reason for official defensiveness is the soaring cost of insurance against claims, and insurance companies telling them to admit nothing. If fear of massive payouts from threadbare budgets were lifted, complaints could be handled faster and better.

As far as we're aware at least there are no insurance companies here. Matters are dealt with by NHS Resolution, itself funded by a levy on the Trusts. This is a useful and sensible manner for an organisation of this size to insure by the way. The risk pool is large enough that there's little point in trying to spread it further.

This is also wrong:

There used to be a concept of crown immunity that spelled out the special social contract between citizen and service. Is it time to return to something like it? Citizens need to ask themselves if they want ever larger sums of money drained from services to go to a few claimants who can prove their case, while a great many lawyers make more than the value of the original claims: the public realm belongs to us all, equally.

Crown Immunity for civil claims was lifted on Jan 1 1948, some 6 months or so before the formation of the NHS. As Frank Dobson pointed out in the Commons:

Crown immunity was first substantially undermined —if that is the right word—by the Crown Proceedings Act introduced by the Labour Government in 1947. It was felt necessary to move with the times and at least give individuals the opportunity and right to sue the Crown for damages. However, the Crown Proceedings Act does not permit criminal proceedings against the Crown or any of the agencies presently covered by Crown immunity. As a result, many laws do not apply to Crown property or to Crown institutions.

We find ourselves in the strange position that a health authority can be sued by an injured individual in the civil courts, possibly over being poisoned as a result of something going wrong in a kitchen, but the health authority cannot be prosecuted under the criminal aspects of the food hygiene regulations that the authority was breaking.

What Polly is thinking about is the lifting of Crown Immunity in respect of the regulatory apparatus, not civil damages for negligence, that happening in 1990.

We think it's a little fun to point out that the right to sue for civil injury was granted by a Labour government, the part putting the NHS under the more normal regulatory system of the land a Tory one. Polly complaining about that Labour action of course. 

This still leaves us, of course, with the desire to reduce the number of claims of negligence - we're not in favour of lives being irretrievably screwed up after all.

At which point we really should be, as is already in fact being tried, importing an aspect of the US medical system. Yes, we know, we'll all be bankrupted in our beds by being charged for our health care. Or, rather, perhaps not killed in them:

Today, aviation is arguably the safest form of transportation. Last year the accident rate had dropped to a low of only four fatal crashes from a total of 37.6 million flights.

Independent investigation is at the heart of this process. Professionals are given every reason to cooperate, because they know that investigations are not about finding scapegoats, but learning lessons.

Indeed, professionals are given a legal safe space so they speak up honestly, and can be penalised only where negligence or malevolence is proven.

Independent investigation and safe space protection are equally vital in healthcare.

Staff must be assured that when mistakes are caused by defective processes, they can speak up without being scapegoated.

Only by combating the "blame culture" in the NHS can transparency and meaningful change take place.

Hospitals that have developed a culture of open reporting have produced outstanding results.

The number of malpractice claims against the University of Illinois Medical Center, for example, fell by half in two years.

Virginia Mason, a hospital in Seattle, has seen a fall in insurance liability premiums of a staggering 74%.

As Gary Kaplan, its chief executive, put it: "We have a system that learns the lessons so that we can turn weaknesses into strengths".

There is indeed a solution to the problem Polly describes. It's just, as ever, not the solution that Polly proposes. Open investigation of systems and events then coming down like a tonne of bricks upon those negligent - yea even unto the actual punishment of individuals - is the way to do it. Rather than just not suing the NHS because it's a Wonder.