The Gazette 1990

GAZETTE

APRIL 1990

Medical negligence claims - some practical observations

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. 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 - Obtaining Professional Witnesses

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?

'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

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

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

J o hn Schutte

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