The Gazette 1992

GAZETTE

MAY 1992

V 1 E W P 0 1 N T Personal Injuries — issues to be reconciled

Personal injury claims have continued to attract significant media attention during recent weeks. While Minister O'Malley's proposed reforms are still awaited, there are clearly significant conflicts between various interests which will be difficult to reconcile. The announcement by various local authorities and insurers that they are to pool their information in order to identify plaintiffs who have brought spurious claims against various defendants in respect of identical injuries is to be welcomed. The length of time that it has taken these defendants to arrange some form of co-operation in order to identify the makers of these spurious claims does not suggest that efficiency and co- operation had previously reached a high level among these defendants. It has been suggested, though so far as we are aware without any firm evidence, that firms of solicitors and perhaps counsel have colluded in these spurious claims. If this be so then the Law Society, Bar Council or the Courts should deal firmly with such lawyers. Among the more curious of the recent complaints has been that of Deputy Bernard Allen that solicitors by operating on a " no foal no fee" basis are encouraging the growth of claims. There appears to be some confused thinking behind this comment. If the claims are spurious then the question of whether the solicitor operates "on a no foal no fee" basis is irrelevant. The claim should not have been brought in any case. If the claims are not spurious then is it suggested that solicitors and counsel should not take them unless they are paid in advance or paid at various stages of the proceedings? Irish solicitors and barristers have a long standing tradition of assisting persons with statéable claims to get their cases into court without the expenditure of significant sums of money. In the absence of any proper civil legal aid

scheme only persons of considerable financial strength would be able to bring personal injury claims if Irish lawyers did not operate on a no foal no fee basis. Perhaps the most amusing of the recent comments was that emanating from the Irish Medical Organisation general meeting where we were solemnly assured that American lawyers were being brought over to Ireland to teach Irish lawyers how to improve their skills in bringing medical negligence cases. While we are not aware of any great influx of American lawyers offering their skills to Irish lawyers, it does occur to us that it has not been unusual in the past for Irish medical practitioners to bring distinguished American medical practitioners to Ireland to assist them in their professional post-qualification learning and development. The medical profession have been late comers to the position of defendants in professional negligence cases and seem to be having difficulty in adjusting to that status. plaintiffs in genuine cases of medical negligence because of the difficulty of getting doctors to act as expert witnesses for plaintiffs. Fortunately, the various branches of the medical profession have seen that such a situation is inappropriate and have arranged for panels of expert witnesses to be formed. There may still be difficulties in plaintiffs getting access to their medical records at early stages of proceedings. Difficulties of this sort only encourage plaintiffs and their legal advisers to be more determined in their efforts. While acknowledging that we are in an era when perfection is expected of all professionals and that plaintiffs are determined to impose liability on some third party for any ill fortune they may suffer, it may well be that doctors, as other professionals, are For many years considerable difficulties were presented to

Desmond O'Malley TD, Minister for Industry and Commerce still not communicating with patients sufficiently, and explaining that many forms of medical treatment involve an inherent risk which cannot be eliminated even with the greatest skill and care and should prepare patients for a less than 100% success rate in treatments or operations. We have suggested before in these columns that there may be a case for looking at some form of "no fault" scheme for medical negligence such as that in place in Sweden and that which has been proposed by the British Medical Association. Perhaps doctors' representatives would be wise to engage in constructive consideration of such proposals. The Minister's comprehensive proposals are awaited with interest. If he can achieve a system in which injured parties who have genuine claims can be compensated to a level which is acceptable to the public, while limiting insurance premiums to a reasonable level, he will have achieved much. •

TURKS AND CAICOS ISLANDS AND THE ISLE OF MAN Samuel McCleery

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