119 / 436
GAZETTE
APRIL 1990
Medical negligence claims -
some practical observations
Sooner or later most Irish solicitors who engage in personal injury
litigation will be asked to handle a claim for alleged medical
negligence. T he solicitor so consulted for the first time will be in
at the deep-end trying to learn as he goes. Does a solicitor's
experience in general personal injury litigation help or hinder him
in this developing area?
The bulk of a litigation solicitor's
work usually involves car accident
claims and employer's and occu-
pier's liability claims. Obviously
there is much procedural similarity
between thése types of claims and
the medical negligence claim; but
there are practical differences -
and it is important to be conscious
of them.
Most of the problems which a
solicitor taking on a medical
negligence claim will experience
arise in the initial stage after receipt
of instructions. The major practical
differences between personal injury
litigation generally and the medical
negligence claim can be essentially
listed under seven different
headings:
Client;
High Failure Rate;
Obtaining Professional Witnesses;
Initial Letter of Complaint;
Obtaining Hospital Records;
Statute of Limitations; and
Cost.
Client
Frequently, the type of client who
approaches a solicitor with a medi-
cal negligence claim is one who
feels strongly that he has already
suffered at the hands of one pro-
fession, and, therefore, needs early
reassurance that he will be listened
to and his interests properly re-
presented. The typical client might
relate to the solicitor a story of
doctor(s) who have refused to
. . .the client should be
asked to consider seriously
[the option (if it exists) of
effective remedial surgery or
other treatment]."
discuss his complaints, of misre-
presentations and 'white-washing'.
In short, a client pre-occupied with
'finding-the-truth'. It is ironic to
observe that a percentage of medi-
cal negligence claimants would be
content, at this intitial stage, if the
doctor(s) concerned explained to
them what had gone 'wrong' and
'apologised' to them. However,
once the legal process takes over,
the situation between former
patient and former doctor(s) tends
to become polarised. One of the
questions that arises at this early
stage is - would it be cheaper for
the client to have effective remedial
surgery or other treatment carried
out rather than to embark on a High
by
J ohn Schutte,
Solicitor
Court action? If objective medical
opinion is readily available that
such an option exists the client
should be asked to consider it
seriously and to call it a day at that.
High Failure Rate
Offering the client any reasonable
alternative option to the legal
process is important in such cases
as it is difficult to succeed in a
medical negligence action. Unlike
other forms of personal injury
claims where the plaintiff may be
'successful', to some degree, more
than 80% of the time, recent
statistics from the Medical Defence
Union (MDU) and the Medical Pro-
tection Society (MPS) (who bet-
ween them carry the professional
indemnity insurance of most
doctors in the UK and here) indicate
that only 33% of claims are settled
in favour of the plaintiff without
going to court; only 5% of claims
initiated actually continue to a
court hearing; and the remainder
simply stop after proceeding a dis-
tance. Of such claims which have
gone to a hearing only one plaintiff
in five has been successful.
The client in such cases should
be warned at an early stage of the
low plaintiff-success rate, as,
understandably, the client may feel
" Of . . . claims wh i ch have
gone to a hearing only one
plaintiff in five has been
successful."
(wrongly!) that because he came
out of a medical procedure worse
than he went in he is automatically
entitled to compensation.
Obtaining Professional
Witnesses
With an ordinary personal injury
claim, the plaintiff's solicitor writes
to the treating doctor(s) to obtain
a medical report(s) on his client's
condition. With rare exceptions,
such reports are furnished prompt-
ly. However, this is not the normal
scenario in medical negligence
cases. It tends to be difficult to find
a specialist doctor who wishes to
become involved as a professional
witness 'against' a colleague -
J o hn Schutte
103