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GAZETTE
AUGUST/SEPTEMBER 1996
rs Affect Medical Litigation?
ugust 1996 issue of "Irish Doctor" and are republished by kind permission
The myths about
medical lawsuits
There is an increase in medical
litigation because we are a more
mature society, less deferential to the
medical profession and more likely to
question when things go wrong,
writes
Ken Murphy.
"There was no sex in Ireland before
television!" Urban legend has it that this
was once declared on the 'Late Late
Show' by the late
Oliver J. Flanagan,
TD. Apocryphal or not, this lounge bar
legend is intended to be chuckled at as a
ludicrous lament for a golden age of
innocence untouched by the modern
world's corruption.
"There was no medical negligence until
solicitors started advertising!" This
would seem to be only a slight
caricature of a view held by a great
many medical practitioners. Indeed,
judging from the public comments on
the subject of solicitor advertising made
by some members of the medical
profession, it would appear that most
doctors believe that advertising by
solicitors for medical negligence
claims has been a major contributing
cause of the substantial increase in this
form of litigation.
This touchingly innocent credo suggests
a medical profession experiencing grave
difficulty in facing unpleasant realities
and grasping pathetically at solicitor
advertising for a scapegoat. While one
hates to remove a child's comfort
blanket, a few harsh facts about solicitor
advertising for medical negligence cases
are unavoidable at this point.
The solicitor advertisements most
usually complained of by doctors are
the quarter-page, half-page or full-page
advertisements in the Golden Pages.
The numbers of solicitors'firms which
have taken one of these advertising
spaces is considerably less than half of
one per cent of thefirms in the
country. The number of these
advertisements in the current Dublin
Golden Pages which made any specific
reference to medical negligence is
precisely four. How can this have any
significant effect on the level of medical
negligence litigation?
Unfounded figures
Advertising by solicitors was introduced
in 1988 under strong pressure from the
then government. The overwhelming
majority of solicitors'firms have never
paid for media advertising of any kind.
A great many solicitorsfind the large
scale ads in the Golden Pages distasteful
and it is likely that a large majority of
the profession would prefer these ads
to be prohibited. However, there
seems little likelihood that such an
attempt at prohibition would withstand
legal challenge.
Various statistics are trotted out by
vested interest groups who claim that
the level of litigation and level of court
awards made in this country are
excessive and out of proportion to the
levels in the UK and elsewhere. The
source and authority for these figures
are almost never provided and, when
pressed for, thefigures frequently turn
out to be based on little more than
pub talk.
The anecdotal nature of most of the
propagandafigures used in this regard
was clearly recognised by Minister of
State for Consumer Affairs,
Pat
Rahhitte
, last year. In an attempt to
distinguish fact fromfiction and to
compare like with like in different
jurisdictions, he appointed the
accountants Deloitte and Touche to
conduct proper research on these issues.
That report has not yet been made
public and until then solicitors will not
accept the accuracy offiguresquoted by
vested interests.
Advertising by solicitors is a feature of
Ken Murphy
the consumer society. It reflects one of
the great philosophies of our age,
namely that competition between
the providers of services is in principle
a good thing which creates
efficiency among providers resulting
in cheaper and better services
for consumers.
Medical negligence cases are not
invented by solicitors. They cannot be
acted upon without a written opinion
from an independent medical expert to
the effect that there are good grounds
on the facts of the case for believing
that there has been medical negligence.
They cannot succeed unless a
courtfinds that both the negligence
and its injurious consequences have
been proved.
If there is an increase in medical
negligence claims, it is not because a
small number of solicitors are now
advertising. It is because we are a
more mature society, less deferential
to the medical profession and
more likely to question when things
go wrong.
Ken Murphy is Director General of the
Law Society of Ireland.
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