The Gazette 1990

GAZETTE

' APRIL 1990

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."

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

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 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 (or have to be) instituted. Statute of Limitations

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