The Gazette 1996

GAZETTE

AUGUST/SEPTEMBER 1996

rs Affect Medical Litigation? ugust 1996 issue of "Irish Doctor" and are republished by kind permission

The myths about medical lawsuits There is an increase in medical litigation because we are a more mature society, less deferential to the medical profession and more likely to question when things go wrong, writes Ken Murphy. "There was no sex in Ireland before television!" Urban legend has it that this was once declared on the 'Late Late Show' by the late Oliver J. Flanagan, TD. Apocryphal or not, this lounge bar legend is intended to be chuckled at as a ludicrous lament for a golden age of innocence untouched by the modern world's corruption. "There was no medical negligence until solicitors started advertising!" This would seem to be only a slight caricature of a view held by a great many medical practitioners. Indeed, judging from the public comments on the subject of solicitor advertising made by some members of the medical profession, it would appear that most doctors believe that advertising by solicitors for medical negligence claims has been a major contributing cause of the substantial increase in this form of litigation. This touchingly innocent credo suggests a medical profession experiencing grave difficulty in facing unpleasant realities and grasping pathetically at solicitor advertising for a scapegoat. While one hates to remove a child's comfort blanket, a few harsh facts about solicitor advertising for medical negligence cases are unavoidable at this point. The solicitor advertisements most usually complained of by doctors are the quarter-page, half-page or full-page advertisements in the Golden Pages. The numbers of solicitors'firms which have taken one of these advertising spaces is considerably less than half of

one per cent of thefirms in the country. The number of these advertisements in the current Dublin Golden Pages which made any specific reference to medical negligence is precisely four. How can this have any significant effect on the level of medical

negligence litigation? Unfounded figures

Advertising by solicitors was introduced in 1988 under strong pressure from the then government. The overwhelming majority of solicitors'firms have never paid for media advertising of any kind. A great many solicitorsfind the large scale ads in the Golden Pages distasteful and it is likely that a large majority of the profession would prefer these ads to be prohibited. However, there seems little likelihood that such an attempt at prohibition would withstand legal challenge. Various statistics are trotted out by vested interest groups who claim that the level of litigation and level of court awards made in this country are excessive and out of proportion to the levels in the UK and elsewhere. The source and authority for these figures are almost never provided and, when pressed for, thefigures frequently turn out to be based on little more than pub talk. The anecdotal nature of most of the propagandafigures used in this regard was clearly recognised by Minister of State for Consumer Affairs, Pat Rahhitte , last year. In an attempt to distinguish fact fromfiction and to compare like with like in different jurisdictions, he appointed the accountants Deloitte and Touche to conduct proper research on these issues. That report has not yet been made public and until then solicitors will not accept the accuracy offiguresquoted by vested interests.

Ken Murphy

the consumer society. It reflects one of the great philosophies of our age, namely that competition between the providers of services is in principle a good thing which creates efficiency among providers resulting in cheaper and better services for consumers. Medical negligence cases are not invented by solicitors. They cannot be acted upon without a written opinion from an independent medical expert to the effect that there are good grounds on the facts of the case for believing that there has been medical negligence. They cannot succeed unless a courtfinds that both the negligence and its injurious consequences have been proved. If there is an increase in medical negligence claims, it is not because a small number of solicitors are now advertising. It is because we are a more mature society, less deferential to the medical profession and more likely to question when things go wrong.

Ken Murphy is Director General of the Law Society of Ireland.

Advertising by solicitors is a feature of

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