The Gazette 1992

GAZETTE

NOVEMBER 1992

Medical Negligence Costs - A Reply

Recently views were expressed by

members of the Irish Hospital

Consultants Association that

solicitors were partly to blame for

the high level of malpractice claims

brought against doctors which, the

consultants said, had increased

substantially the cost of professional

indemnity insurance for consultant

doctors. This was, they said, pushing

up the cost of treatment. According

to press reports, the consultants also

said that compensation awards for

personal injuries were too high and

that the hearing of claims against

doctors should be taken from the

courts and given to a Medical

Review Panel which would include

doctors. We would take issue most

vigorously with the consultants on

these matters.

The consultants are reported to have

expressed the view that, for reasons

of greed, solicitors were encouraging

patients to claim compensation

against doctors. There is no

substance to such a claim which is

offensive and quite unacceptable to

the legal profession. The truth is

that solicitors are invariably cautious

about taking claims for negligence

against doctors mainly because of

the immense difficulties involved in

sustaining such claims. This is due

largely to the difficulty of getting

other doctors to give evidence

against their colleagues and the very

high cost of obtaining opinions and

reports from the medical profession.

"No Foal No Fee" aids those on low

incomes

The practice engaged in by some

solicitors of offering their services on

a " n o foal no f e e" basis, which has

been criticised by the consultants,

has developed in response to the

needs of litigants because of the very

high outlay involved in taking

proceedings and because of the

inadequacies of the existing civil

legal aid system in this country.

Many ordinary people, whose

incomes are very low and who

cannot afford to pay for legal

services, are denied legal aid under

the existing scheme because of the

low eligibility limits. The Law

Society has urged frequently that this

should be changed and that these

limits should be increased

substantially. Solicitors who offer to

provide legal services on a " n o foal

no f e e " basis are, in effect, carrying

the cost of all the outgoings that are

involved in initiating legal

proceedings.

Many of these

outgoings are in fact paid to doctors

in personal injury cases.

Medical

reports and attendance by doctors as

witnesses are very costly and usually

must be paid in advance.

Damages not too high

We disagree that the level of

damages for personal injuries is too

high. Damages are awarded by

judges in the courts having regard to

all the evidence, particularly the

medical evidence on the injuries

sustained, the pain and suffering

endured by the injured person and

the prognosis as to recovery in the

future. In the past, when decisions

on the level of damages were taken

by juries, it was frequently alleged

by insurance companies and other

interested parties, that juries were

making excessive awards and that, if

decisions on damages were reserved

to judges, all would be well. Since

the abolition of juries, these

decisions are now made solely by

j u d g es

yet the contention that awards

are excessive continues to be made/

N o case has been made by any

independent or objective body that

the level of damages in this country

is too high. The public are entitled

to be fairly and reasonably

compensated for personal injuries

suffered through no fault of their

own. The public would be much

better served if greater attention

were paid to safety considerations,

especially by those responsible for

the condition of our roads and by

employers in the workplace. This

would greatly help to reduce the level

of accidents and thereby eliminate

many of the personal injury claims

that are now brought. In the medical

field, the fact that negligence actions

against doctors in public hospitals

are reported to be two to three times

that taken against doctors in private

practice has nothing to do with

solicitors and raises an issue that

needs to be addressed by the medical

profession itself.

Doctors judges in their own cause

We strongly disagree with the

consultants' view that the handling

of personal injury cases, where

doctors are alleged to have been

negligent, should be taken from the

courts and given instead to a

Medical Review Panel, two-thirds of

the members of which would be

doctors. If this were to happen,

doctors would, very largely, be

sitting as judges in their own cause.

It is not, in our view, a sufficient

answer to say that the plaintiff

should have a right of appeal to the

courts. Matters of this kind should

be determined in the first instance in

an independent forum. A panel of

this kind would simply add another

layer to the process of deciding these

cases, thus adding substantially to

the cost.

•

TURKS AND CAICOS ISLANDS AND

THE ISLE OF MAN

Samuel McCleery

Atorney - at - Law and SoNdtor d PO Box 127 In Grand

Turk,Turk» aid Cdooa Idand», Britah Waet Indlaa aid at 1

Ca»la Skeet. Caetetown. Ma d Man «HI be pieaaed to

accept tnakuctcna genaaly kom kid) Soidtoa In kte to-

rn«Hon and administration ol Eiempl Turks and Cdcos

Island Companies and Non - Resident lele ot Man

Companies aswel aa Trud AdmMekakon

aronto:-

Tat: 800 »48 2818 Fax: 809 846 2819

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