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Expert Reports: Who Refers?

Neil Cahill
05/01/2023

Locations

Ireland

Mr. Justice Twomey in the cases of Sarah Cahill v Brian Forristal and Rachel O'Riordan v Brian Forristal [2022] IEHC 705 has reiterated the High Court's view on the use of expert evidence in personal injury claims.
 

Facts
These two cases related to a rather minor road traffic accident where Ms. Cahill stationery vehicle was struck by the defendant's vehicle.  The impact was so minor there was no visible damage to her car.  Ms. Cahill was referred by her solicitor to two medical consultants (a consultant orthopaedic surgeon? and a  consultant psychiatrist) and an expert engineer was also retained on her behalf.   Both cases were dismissed by the Circuit Court and came before Mr. Justice Twomey on appeal.

The Judge's Commentary

Mr. Justice Twomey dismissed both appeals but of interest were his comments on the use of expert evidence. He reiterated the Court's view from the case of Dardis v. Poplovka (No. 1) [2017] IEHC 149 that it was "inappropriate" for a solicitor to refer a Plaintiff for a medical examination on the basis that (i) a solicitor had no medical expertise and (ii) that any referral should be made through the Plaintiff's own GP.  The Judge considered that the practice of solicitors referring clients to particular experts should be disapproved of because:
 
  1. It would impact the credibility of the Plaintiff regarding injuries which were the subject of the referral as in the Judge's view the very existence of a solicitor referral was prima facie evidence there was no evidence that there was a medical basis for referral;
  2. It would impact the credibility of the Plaintiff regarding other injuries and claims;
  3. The solicitor-referred medical reports may not be admissible as Order 39, Rule 58(1) of the Rules of the Superior Courts states that, “Expert evidence shall be restricted to that which is reasonably required to enable the Court to determine the proceedings.”
  4. The strain such referrals place on medical resources;

However, the Judge did accept that on occasion certain types of solicitor referral are appropriate.  For example, he accepted that the defendants are perfectly entitled to get a second opinion from a different consultant in the same speciality.

Conclusions

This judgement reiterates the view that a Plaintiff should obtain medical evidence from the treating consultant following an appropriate referral from their GP.  Whilst one can see the rational for this approach, it does still lead to some interesting questions relating to the efficient use of resources and prosecution of claims.

One could argue that the funnelling of all medical evidence through the GP slows down the litigation process as Plaintiff's and Defendant's alike are at the mercy of the resource constraints and priorities of the GP's practice.

Also, one could argue that all experts regardless of the basis of their instruction are subject to the same court declaration in respect of their duties and therefore whilst a court could draw inferences from the failure of an expert to have the full medical picture, e.g. medical notes and records, this would not necessarily make the appointment of such an expert any less appropriate. 

Indeed, when one looks at other jurisdictions, including the UK, it is not unusual for medico-legal reports to be obtained in the very manner the Irish Courts have now disapproved of.

These are all interesting arguments when one considers the appropriate way to handle a personal injury claim from a Plaintiff's perspective particularly in the context of the advent of the personal injury guidelines and more cases being dealt with in the District Court on a fixed cost basis. 

However, what is apparent is that the Court currently has shown no appetite for a change of approach when it comes to appropriateness of medical reports and Plaintiff's will be well advised to only obtain reports from experts where the Plaintiff has been "medically" referred.

Written by Neil Cahill

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