The Gazette 1994

GAZETTE

C O R R E S P O N D E N C E X 4

AUGUST/SEPTEMBER 1994

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.

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.

Yours etc.,

Michael Pegum, FRCSI, Chairman, Medico-Legal Irish Hospital Consultants' Association

Sub-Committee,

n

I R I S H D O C U M E N T E X C H A N G E

O V E R N I G H T ~ E V E R Y N I G H T E V E R Y W H E R E

More than 50 document exchanges throughout Ireland 37 Fenian Street, Dublin 2 Tel: 01 676 4601 Fax 01 676 7093 D X I Dublin

London West End Solicitors will advise and undertake UK related matters. All areas - corporate/private client. Resident Irish solicitor. Reciprocal arrangement and fee sharing envisaged. Agency work also. Contact: Ellis & Fairbairn, 26 Old Brompton Road, South Kensington, London SW7 3DL. Tel: 0044 71 589 0141 Fax: 0044 71 225 3935.

257