The Gazette 1994

GAZETTE

MARCH 1994

V I E W P 0 I

N T

S o l i c i t o r s , D o c t o r s , F e e s a n d Subpoenas

The relationship between solicitors and doctors in personal injury actions has given rise to some controversy in recent times and, in our view, it is a matter of importance that the professional bodies representing solicitors and the medical profession should examine the issues that have arisen so as to eliminate the potential for dispute. There are essentially three areas ! where difficulties have arisen - the furnishing of medical reports, attendance by doctors as witnesses in I court and the use by solicitors of the subpoena. obviously essential that their claim should be properly substantiated and, in this regard, medical reports from the physician who treated the person are essential to the judicial process. In the recent past, the Medical Council has made it clear that doctors have a 'moral and professional responsibility' to provide a medical report if requested to do so. This is because, according to the Medical Council, failure to comply 'may lead to a patient being deprived of benefits to which he/she may be entitled'. This pronouncement has been helpful and has, at least, put the doctor's duty in relation to medical reports beyond dispute. The Law Society would contend that, for precisely the same reason, a doctor has a duty to attend court to give evidence if requested to do so and it would be surprising if there were many doctors who would have any difficulty with this view. The problem, however, relates to the question of fees. In straightforward contractual terms, the responsibility for paying for a medical report is that When a person has a personal injury claim against a third party, it is

of the patient (the solicitor's client) and not of the solicitor. However, many people pursuing personal injury claims cannot afford to meet the cost of outlay, including medical reports, and so the practice developed of solicitors agreeing to fund the outlay, to be recouped when the case is settled. It may be that, in the past, some solicitors, having accepted responsibility to meet the cost of medical reports, subsequently defaulted in discharging the fees involved and, consequently, many doctors, perhaps for that reason, feel the need to demand payment of their fees in advance. In our view, where a solicitor accepts instructions on the basis that he will fund the outlay, he should personally accept responsibility for the doctor's fees for a medical report and should agree an arrangement with the medical practitioner in relation to the discharge of such fees. Failure by the solicitor to pay should, in such circumstances, be a matter of professional misconduct. As against that, it seems to us, as a general principle, that there is no justification for doctors seeking the payment of fees in advance. They, like members of other professions, should, where the patient cannot afford to pay, be prepared to accept an undertaking from a solicitor that the fees will be discharged at the end of the case. Where the solicitor has not personally accepted responsibility, a doctor cannot impose that on him. The same general principles should apply in relation to attendance of doctors in court. The Insurance Federation has agreed levels of fees for consultants and these are quite substantial. In addition, there is provision for the payment of stand-by fees where a doctor is put on notice that his attendance may be required

on a particular day but he is not subsequently called. Moreover, cancellation fees are also payable. Demanding the payment of such fees in advance is unacceptable and an undertaking from a solicitor to discharge the fees at the end of the case ought to be sufficient. It is, of course, perfectly reasonable that doctors should be paid but where the patient cannot afford to pay the doctor may have to 'take his chances' just as solicitors have to do. Apart from the issue of fees, some doctors have not in the past always appeared willing to accept their responsibility to attend court. Perhaps this resulted in some cases from an insufficient awareness of the | duty involved. Where a solicitor has any doubt about a necessary witness attending, the interests of justice (as well as his own professional interest) leave him with no option but to serve a subpoena. Doctors understandably resent the subpoena process and the accusation has been made publicly that solicitors resort to it in order to evade paying doctors or simply as a demonstration of power. The Law Society has rejected these accusations but, in fairness to the medical profession, there may be a need for clarification of the circumstances in which the subpoena should be invoked by a solicitor. As we have said, these are important issues affecting virtually all legal practices and medical practitioners. It is time that the Law Society and the medical organisations drew up appropriate guidelines covering the principles of good professional practice in these matters.

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