To sue or not to sue? That is the question

He successfully delivered what he remembers what was a large baby, but during the difficult birth the mother had to have a transfusion to replace blood lost from an incision made to ease the baby's way into the world.

A few weeks later a routine examination by the woman's GP discovered that a surgical swab had been left inside her after she had been stitched up. The first thing the doctor knew about all of this was when he opened a solicitor's letter.

"I was so mortified when I got that letter. I thought, I'm going to prison, what am I going to tell my parents?" he says.

As it turned out, the claim was settled out of court, an undisclosed sum paid by his medical defence organisation and the young doctor was able to carry on with his career. "An early settlement was made and looking back that was the right thing to do," he recalls.

That was nearly 20 years ago. Dr Nicholas Wilkes, is now one of the UK's only medically-qualified medical negligence lawyers after switching careers. Fortunately, that early brush with the law was an unique experience for Dr Wilkes who completed a decade of doctoring in the region's hospitals without any other serious problems.

Dr Wilkes, now an associate with the Newcastle solicitors Hay & Kilner, tells the story to show that he understands the risks every doctor runs every day and knows from his own experience how devastating it is to be on the receiving end of medical negligence claims.

"I send letters like that all the time and I do stop and think that it's going to make some poor chap very miserable," he says.

But at the same time he believes patients with a good case should be given the best possible advice about their claim.

The 43-year-old concedes that virtually every doctor will make a mistake at some stage of their career. "I think it is inevitable. However good you are, there are times when you foul up," he says.

His decision to switch from medicine to law was timely: in the last decade the NHS has seen a steady rise in the number of medical negligence claims.

Recently the House of Commons Public Accounts Committee estimated that around 850,000 "adverse events" occur within the NHS every year, resulting in 40,000 deaths.

This has resulted in steadily increasing numbers of medical negligence claims and growing concern that the UK is developing a compensation culture similar to the United States.

Two years ago, it was estimated that medical claims totalling £80m were outstanding against hospitals in the North-East and North Yorkshire. Last year it was estimated that if every claim against the NHS was settled, it would cost the Government £8bn.

But on the other side of the coin the patient pressure group Action for Victims of Medical Accidents (AVMA) claim that less than one per cent who are harmed by avoidable medical accidents actually made a claim.

Dr Wilkes believes this culture has had an impact in medicine but points out that dubious claims now stand less chance of being legally aided.

Until the system was changed to restrict legal aid to those cases which appear well-founded, large amounts of public money were going on supporting claims which had often little chance of being upheld in court.

Now people who believe they have a legitimate claim against a doctor or a hospital, but need legal aid to pursue their case, must go to a specialist medical negligence lawyer and convince them they stand a good chance of winning.

"The old system was very much adversarial, it was a war of attrition and the defendants usually won because they had more resources," says Dr Wilkes.

Thanks to the reforms, anyone wishing to be legally aided in their medical negligence claim must go to a specialist law practices around the country. In the North-East, Hay & Kilner is one of those which can handle such claims.

Dr Wilkes, who joined the firm four and a half years ago after completing at MA at Newcastle Univesity and legal practice degree at Northumbria University, is very unusual in bringing a medical perspective to claims.

"I say it is like being fluent in two languages, I can speak medic and I can speak law. I can interpret medical records and identify what is missing. It is often what is not there that is the most telling piece of evidence," he says.

So what hurdles, apart from a low income, do people have to clear if they want to mount a legally-aided claim?

"The bad news is that unless your lawyer assesses your chance of winning at more than 50 per cent you are unlikely to be state aided. Another reason for shooting down the application is the prospect of ending up with less than the cost of the action.

"In practice if your case is not likely to recover around £10,000, you are unlikely to satisfy their cost benefit criteria," he says. "You have to ask yourself would you invest £5,000 to recover £2,000 at the end? It is not a bet you would want to take on," says Dr Wilkes.

"You may have a watertight case and be 90 per cent sure of winning but if it's only worth £2,000, the legal aid people are going to kick it into touch. To try to say to someone that the death of a wife or child isn't worth enough money for the state to be interested is quite a brutal thing to say."

However, if legal aid is secured, the solicitor can begin to investigate the claim. The first thing the lawyer has to do is establish that the doctor or hospital was in breach of their duty of care to the patient.

This usually involves obtaining the patient's medical records and calling in an independent medical expert.

"The only opinion which matters is the view of another surgeon or GP, an independent medical expert. The ultimate strength of your case is what other doctors say about the treatment you are complaining about," says Dr Wilkes.

If it is shown that negligence has taken place the next, crucial, stage is to establish what lawyers call "causation". Dr Wilkes puts this simply as the "so what?" question.

"There could have been gross negligence but if it hasn't harmed you or set you back in any way then you fail to establish causation and your claim will fail."

These days, once a strong claim has been established, many cases end with the defendant's solicitor agreeing to a negotiated pay-out without the need to go to court. "We are encouraged to put our cards on the table. If we think the claim is worth £20,0000 we might ask the defendant if they will offer £15,000 in settlement," says Dr Wilkes, who believes it is a much better system.

During his legal career Dr Wilkes has encountered a range of claimants, from those who are fortune-hunting to those who have a legitimate claim.

But what really annoys the doctor-turned-lawyer are those who fail to understand some of the basic ground rules of life. "Just because something has gone wrong or someone has died, or you have still got pain after your operation, you can't jump to the conclusion that there has been negligence," he says.

"An adverse outcome does not necessarily mean there has been negligence. We are all going to die, diseases kill. Sometimes it is not possible to make us better."