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GAZETTE
C O R R E S P O N D E N C E
X
4
AUGUST/SEPTEMBER 1994
Solicitors, doctors, fees and
subpoenas
The Editor,
Gazette,
Dear Editor,
The Viewpoint article in the April,
1994 issue of the
Gazette
(Vol. 88, No.
3, p 89) raises important issues on these
subjects, and suggests that the Law
Society and the medical organisations
should draw up appropriate guidelines
covering the principles of good
professional practice in these matters.
The Medical Council does state, and
doctors do accept, that there is a moral
and professional responsibility (though
not a legal obligation) to write medical
reports on request from patients'
solicitors. A problem arises, however,
with regard to the fees for these
reports. The Medical Council says that
"a practitioner is free to charge a fee
for a medico-legal report which is
reasonable and not excessive in regard
to the services performed". The
Viewpoint article says, with a trace of
indignation, that a doctor should be
prepared to accept an undertaking
from the solicitor that the fee will be
discharged at the end of the case,
suggesting that it is merely a matter of
postponing the payment. It is implied,
without being actually stated, that the
fee will always be paid at the end of
the case,
whether it is won or lost.
As
many doctors know, this is not so.
It is recognised that solicitors provide
a valuable service to the community,
amounting to free civil legal aid, with
their "no win, no fee" policy in
personal injury cases. Naturally, some
of these cases will be lost and the
solicitor will be out of pocket; it is
understandable that the solicitor will
try to minimise these losses with the
suggestion that payment of fees for
reports should be deferred to the end
of the case.
In fact, it seems that what is also being
suggested is that doctors, too, should
be prepared to forego fees in cases
which are lost. This is implicit in the
suggestion later in the article that,
where the patient cannot afford to pay,
"the doctor may have to 'take his
chances' just as solicitors have to do".
This seems to ignore a fundamental
difference between the roles of
solicitors and doctors in these cases.
The solicitor is an advocate, obviously
and openly paid to win the plaintiff's
case if at all possible. Surely the
doctor, as a witness, is meant to be
impartial and disinterested? Even
when served with a
subpoena
(and this
is a point misunderstood by many
doctors) the doctor is, of course,
summoned by the Court and not by the
solicitor. The suggestion that the fees
will be paid only if the case is won,
and not otherwise, means that the
doctor will now have a financial
interest in the outcome of the case. In
most cases, this will be substantial. At
present rates, in a case in which there
were two medical reports and half a
day in the High Court, the fees would
amount to about £500.
If a witness (for example, a workmate
present at the scene of an industrial
accident) is told by a solicitor that he
will be paid £500 if his evidence helps
the plaintiff to win his case, what will
the Court's attitude be? Will the
Defence be interested in this
arrangement? Is it any different when
the witness is a doctor?
Furthermore, if doctors giving
evidence are to be seen as obviously
partisan, it is going to make their time
in the witness box even more
uncomfortable than it is at present,
their reports and evidence more
subject to attack and the doctors more
reluctant to be involved. Payment for
reports two or three years in arrears,
and non-payment for some, would
mean that doctors, too, would feel
inclined to reduce their costs. This
would lead to a higher proportion of
reports being short and superficial and,
probably, to their being much more
difficult to elicit.
My committee would be willing to
hold discussions with the Law Society
on these and related matters. However,
it will be difficult to persuade doctors
to accept late and uncertain payment
of fees in these cases, into which
doctors are drawn involuntarily.
Yours etc.,
Michael Pegum, FRCSI,
Chairman,
Medico-Legal
Sub-Committee,
Irish Hospital Consultants'
Association
n
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