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GAZETTE
' APRIL 1990
Ireland being a small place, every-
one tends to know everyone else in
the medical profession. It is not
unusual for a potential plaintiff's
solicitor to have to seek medical
expertise from abroad, thus in-
creasing the cost of the initial
report(s) and advice. Because one
doctor will tend to be reluctant to
allege blame against a colleague,
the doctor approached will be
careful and painstaking in his
examination of the facts and of the
plaintiff, thereby giving rise to delays
which in turn can cause stress in
the solicitor/client relationship.
In recent years obtaining in-
dependent medical advice from
Engalnd has become a lot easier
thanks to the efforts of an organi-
sation called the Action for Victims
of Medical Accidents (AVMA). It is
a company limited by guarantee
and registered as a charity in the
UK. AVMA provides a service to
solicitors by making available to
them names of doctors who are
prepared to act for plaintiffs
pursuing such claims and also by
providing solicitors with informa-
" In recent years obtaining
independent medical advice
from England has become a
lot easier. . . . "
tion from its resource service and
by means of its conference on
medical negligence.
Initial Letter of Complaint
The claimant's solicitor should give
due consideration to the content of
the first letter of complaint to the
doctor(s) concerned. The tendency
might be to use the standard type
of warning-letter appropriate for a
car accident case in which little
information is given of how the
accident occurred and which
makes a demand for an immediate
admission of liability coupled with
a threat of legal proceedings if
liability is not so admitted.
Pursuing vigorously the client's
claim does not necessarily preclude
a balanced approach to writing to
the doctor(s) concerned. The initial
letter is not any the less effective
if it does not directly allege
negligence and does not threaten
legal proceedings. It is not a sign of
weakness that the tone of such
letter is personal. My own pre-
ference is to address a doctor by
name; to outline the injuries or
condition complained of by the
client; to indicate that the purpose
of the letter is to give the doctor an
opportunity of offering an explan-
ation to the client to enable the
client to be reassured as to the
treatment received and to the benefit
of such treatment; and to conclude
£y pointing out that, in the absence
of a satisfactory explanation, the
client would no doubt wish to
pursue the matter further.
This more subdued initial letter to
the doctor is more likely to elicit a
rational and reasonable response.
Although no doctor wants to re-
ceive "a solicitor's letter", with all
the meaning that that conveys, he
would prefer to receive one framed
in a courteous way and giving as
much detail as possible of the
client's complaint.
Obtaining Hospital Records
Presuming that the solicitor has
obtained a detailed statement from
the client and procured the services
of one or more medical advisers, it
will then be necessary, where the
client had received treatment in
hospital, to obtain a copy of the
hospital records. This is an area
where difficulties can arise, and
frequently the hospital concerned
will not make such records
available to a plaintiff's solicitor on
a voluntary basis. This, in turn,
would mean that, if not already
done, proceedings must be issued
and a statement of claim delivered
(which, at least in general terms,
must set forth the plaintiff's al-
legations of negligence), before a
motion for discovery can be
brought to the Master of the High
Court. If the hospital is a co-
defendant with the doctor(s)
concerned then such a motion
would ^e an ordinary 'inter-partes'
motion; but if the hospital is not a
co-defendant, then it would be a
third-party discovery motion.
Once commenced, court pro-
ceedings tend to take on a life of
their own. If hospital records were
made available voluntarily at an
early stage then, in the light of the
'success' statistics provided by the
MDU and MPS, referred to earlier,
it would seem that the issuing of
proceedings in up to 60% of
medical negligence cases could be
"Once commenced, court
proceedings tend to take on a
life of their own."
avoided. This is a good reason,
viewed from both sides, why a full
copy of the hospital records should
be made available voluntarily to the
complainant's solicitor and medical
adviser(s) immediately it is re-
quested and before proceedings are
(or have to be) instituted.
Statute of Limitations
A number of clients who have
approached me with potential
medical negligence claims have
done so late-in-the-day, from the
Statute of Limitaitons standpoint.
Faith in the medical profession is
still, quite justifiably, very strong in
this country and even the con-
templation of suing one's doctor(s)
does not come easily. Delay also
comes about because the client
finds it difficult to locate a solicitor
prepared to undertake a medical
negligence action, particularly
where (because of the client's lack
of means) it is to be on a 'no-win-
no-fee' basis.
A further problem regarding the
Statute of Limitations can arise
where the client has been treated
by a number of doctors and might
only know the name(s) of one or
two of them. There is then the risk
that in issuing proceedings the
name of the doctor who might
actually be at fault is omitted, that
fact possibly only coming to light
at a later stage by which time the
claim against such doctor might be
statute-barred. Detailed early en-
quiry as to the identity of all the
doctors concerned in the client's
treatment will obviate this risk.
Cost
In Ireland, there is one final
practical difficulty for potential
medical negligence plaintiffs - the
cost. The cost of processing a
medical negligence claim is always
potentially high, because of the
professional witness involvment.
However, in the UK, civil legal aid
is much more available than here;
and, in the US, plaintiffs' lawyers
are entitled to undertake such
cases on a contingency fee basis,
with a high percentage charge
(from 25% up to as high as 40%
'right-off-the-top' of any ultimate
damages' recovery) if ultimately
successful, but usually 'zero' if
unsuccessful. In this country, the
reality is that the very limited law
centre-based civil legal aid scheme
is not open to a person with a
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