The Gazette 1994

GAZETTE

V I E W P 0

N T

MARCH 1994

S o l i c i t o r s , D o c t o r s ,

F e e s a n d

Subpoenas

The relationship between solicitors

and doctors in personal injury actions

has given rise to some controversy in

recent times and, in our view, it is a

matter of importance that the

professional bodies representing

solicitors and the medical profession

should examine the issues that have

arisen so as to eliminate the potential

for dispute.

There are essentially three areas

! where difficulties have arisen - the

furnishing of medical reports,

attendance by doctors as witnesses in

I court and the use by solicitors of the

subpoena.

When a person has a personal injury

claim against a third party, it is

obviously essential that their claim

should be properly substantiated and,

in this regard, medical reports from

the physician who treated the person

are essential to the judicial process.

In the recent past, the Medical

Council has made it clear that doctors

have a 'moral and professional

responsibility' to provide a medical

report if requested to do so. This is

because, according to the Medical

Council, failure to comply 'may

lead to a patient being deprived of

benefits to which he/she may be

entitled'. This pronouncement has

been helpful and has, at least,

put the doctor's duty in relation to

medical reports beyond dispute.

The Law Society would contend that,

for precisely the same reason, a

doctor has a duty to attend

court to give evidence if requested

to do so and it would be surprising

if there were many doctors who

would have any difficulty with

this view.

The problem, however, relates to the

question of fees. In straightforward

contractual terms, the responsibility

for paying for a medical report is that

of the patient (the solicitor's client)

and not of the solicitor. However,

many people pursuing personal injury

claims cannot afford to meet the cost

of outlay, including medical reports,

and so the practice developed of

solicitors agreeing to fund the outlay,

to be recouped when the case is

settled. It may be that, in the past,

some solicitors, having accepted

responsibility to meet the cost of

medical reports, subsequently

defaulted in discharging the fees

involved and, consequently, many

doctors, perhaps for that reason, feel

the need to demand payment of their

fees

in advance.

In our view, where a

solicitor accepts instructions on the

basis that he will fund the outlay, he

should personally accept

responsibility for the doctor's fees

for a medical report and should agree

an arrangement with the medical

practitioner in relation to the

discharge of such fees. Failure

by the solicitor to pay should, in such

circumstances, be a matter of

professional misconduct. As against

that, it seems to us, as a general

principle, that there is no

justification for doctors seeking the

payment of fees

in advance.

They,

like members of other professions,

should, where the patient cannot

afford to pay, be prepared to accept

an undertaking from a solicitor that

the fees will be discharged at the

end of the case. Where the solicitor

has not personally accepted

responsibility, a doctor cannot

impose

that on him.

The same general principles should

apply in relation to attendance of

doctors in court. The Insurance

Federation has agreed levels of fees

for consultants and these are quite

substantial. In addition, there is

provision for the payment of stand-by

fees where a doctor is put on notice

that his attendance may be required

on a particular day but he is not

subsequently called. Moreover,

cancellation fees are also payable.

Demanding the payment of such fees

in advance

is unacceptable and an

undertaking from a solicitor to

discharge the fees at the end of the

case ought to be sufficient. It is, of

course, perfectly reasonable that

doctors should be paid but where the

patient cannot afford to pay the

doctor may have to 'take his chances'

just as solicitors have to do.

Apart from the issue of fees, some

doctors have not in the past always

appeared willing to accept their

responsibility to attend court.

Perhaps this resulted in some cases

from an insufficient awareness of the |

duty involved. Where a solicitor has

any doubt about a necessary witness

attending, the interests of justice

(as well as his own professional

interest) leave him with no

option but to serve a

subpoena.

Doctors understandably resent the

subpoena

process and the accusation

has been made publicly that solicitors

resort to it in order to evade paying

doctors or simply as a demonstration

of power. The Law Society has

rejected these accusations but, in

fairness to the medical profession,

there may be a need for clarification

of the circumstances in which the

subpoena should be invoked by

a solicitor.

As we have said, these are important

issues affecting virtually all legal

practices and medical practitioners. It

is time that the Law Society and the

medical organisations drew up

appropriate guidelines covering the

principles of good professional

practice in these matters.

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