153 / 462
GAZETTE
MAY 1992
V 1 E W P 0 1 N T
Personal Injuries — issues to
be reconciled
Personal injury claims have
continued to attract significant
media attention during recent weeks.
While Minister O'Malley's proposed
reforms are still awaited, there are
clearly significant conflicts between
various interests which will be
difficult to reconcile.
The announcement by various local
authorities and insurers that they are
to pool their information in order to
identify plaintiffs who have brought
spurious claims against various
defendants in respect of identical
injuries is to be welcomed. The length
of time that it has taken these
defendants to arrange some form of
co-operation in order to identify the
makers of these spurious claims does
not suggest that efficiency and co-
operation had previously reached a
high level among these defendants. It
has been suggested, though so far as
we are aware without any firm evidence,
that firms of solicitors and perhaps
counsel have colluded in these spurious
claims. If this be so then the Law
Society, Bar Council or the Courts
should deal firmly with such lawyers.
Among the more curious of the
recent complaints has been that of
Deputy Bernard Allen that solicitors
by operating on a " no foal no fee"
basis are encouraging the growth of
claims. There appears to be some
confused thinking behind this
comment. If the claims are spurious
then the question of whether the
solicitor operates "on a no foal no
fee" basis is irrelevant. The claim
should not have been brought in any
case. If the claims are not spurious
then is it suggested that solicitors
and counsel should not take them
unless they are paid in advance or
paid at various stages of the
proceedings? Irish solicitors and
barristers have a long standing
tradition of assisting persons with
statéable claims to get their cases
into court without the expenditure of
significant sums of money. In the
absence of any proper civil legal aid
scheme only persons of considerable
financial strength would be able to
bring personal injury claims if Irish
lawyers did not operate on a no foal
no fee basis.
Perhaps the most amusing of the
recent comments was that emanating
from the Irish Medical Organisation
general meeting where we were
solemnly assured that American
lawyers were being brought over to
Ireland to teach Irish lawyers how to
improve their skills in bringing
medical negligence cases. While we are
not aware of any great influx of
American lawyers offering their skills
to Irish lawyers, it does occur to us
that it has not been unusual in the
past for Irish medical practitioners to
bring distinguished American medical
practitioners to Ireland to assist them
in their professional post-qualification
learning and development.
The medical profession have been
late comers to the position of
defendants in professional negligence
cases and seem to be having
difficulty in adjusting to that status.
For many years considerable
difficulties were presented to
plaintiffs in genuine cases of medical
negligence because of the difficulty
of getting doctors to act as expert
witnesses for plaintiffs.
Fortunately, the various branches of
the medical profession have seen that
such a situation is inappropriate and
have arranged for panels of expert
witnesses to be formed. There may
still be difficulties in plaintiffs getting
access to their medical records at early
stages of proceedings. Difficulties of
this sort only encourage plaintiffs and
their legal advisers to be more
determined in their efforts.
While acknowledging that we are in
an era when perfection is expected of
all professionals and that plaintiffs
are determined to impose liability on
some third party for any ill fortune
they may suffer, it may well be that
doctors, as other professionals, are
Desmond O'Malley TD, Minister for
Industry and Commerce
still not communicating with patients
sufficiently, and explaining that many
forms of medical treatment involve an
inherent risk which cannot be
eliminated even with the greatest skill
and care and should prepare patients
for a less than 100% success rate in
treatments or operations.
We have suggested before in these
columns that there may be a case for
looking at some form of "no fault"
scheme for medical negligence such as
that in place in Sweden and that
which has been proposed by the
British Medical Association. Perhaps
doctors' representatives would be wise
to engage in constructive consideration
of such proposals.
The Minister's comprehensive
proposals are awaited with interest.
If he can achieve a system in which
injured parties who have genuine
claims can be compensated to a level
which is acceptable to the public,
while limiting insurance premiums to
a reasonable level, he will have
achieved much.
•
TURKS AND CAICOS ISLANDS AND
THE ISLE OF MAN
Samuel McCleery
Atorney • at - Law end SoNctor of PO Bra 127 In Grand
Turk,Turk» aid Catcoe Wanda, MMWaal kvftee aid at 1
Caale Steel Caaletown. lata of Man «M be plaaaad to
accept tnstuclens genaaly tram tWi Soldtors In tie ta-
rnation and administration ot Esompt Turks aid Cdcos
Island Companies and Non - Raaldanl lata ot Man
Compantoo as «sal aoTrust AdmMstaltan
GTOtfb»:-
Taf: 809 »4« 2818 Fu: 808 948 2819
I.O.M.Otfk»:-
Tal: 0624 822210 Total: 628285 Samdan G
Fax: 0624 823789
129