The High Court has awarded €60,000 to a woman who suffered a back injury while working as a healthcare assistant in Limerick Regional Hospital. In so ruling, the court was required to assess the weight it should attach to the evidence of the plaintiff’s medical expert. It was argued by the HSE that the plaintiff’s solicitor had referred the plaintiff directly to the expert which was not in accordance with case law.
Delivering judgment in the case, Mr Justice Cian Ferriter did not accept that it was inappropriate per se for the solicitor to have referred the plaintiff to the expert. It was held that the key principle was that a solicitor must ensure that a medical expert has all necessary information to assess a plaintiff’s condition. In this case, the court was satisfied that the expert had received a true account of the plaintiff’s medical history and, therefore, the court could rely on his evidence.
Background
The plaintiff was a young woman who injured her back as a healthcare assistance at LRH in September 2018. She was lifting a patient onto a trolley bed when she hurt herself. She continued to suffered sequalae in the years after the incident and abandoned her career goal of qualifying as a nurse. Instead, she went back to university to train in law and become a human rights advocate.
In making a claim against the hospital, the plaintiff relied on evidence from a medical expert, Mr John Rice. He had examined the plaintiff and wrote reports in November 2019, September 2021 and March 2022. He expressed a view that the plaintiff would likely continue to experience symptoms from her back injury into the future due to her lack of progress.
Mr Rice arranged for MRI scans which did not show any abnormality and there was no need for surgery or a pain specialist. However, he opined that the pain had become imprinted in such a way that the plaintiff was likely to have back pain on a long term basis.
Additionally, one of the HSE’s experts accepted that the plaintiff was genuinely reporting her symptoms and she could be one of the exceptional cases where soft tissue injuries did not fully resolve. A second expert for the HSE did not accept that the plaintiff’s ongoing symptoms were linked to the original accident.
Following the close of the evidence, the HSE raised a legal point on the weight that should be attached to Mr Rice’s evidence. It was argued that the plaintiff’s solicitor had referred the plaintiff to Mr Rice and that he did not have sight of her previous GP records when he examined her.
The HSE relied on case law which held that it was not appropriate for a solicitor to refer a client to a specialist doctor. It was said that, because he had not seen the plaintiff’s GP records before examining her, he was not operating with sufficient information to properly assess her condition. In this regard, the HSE relied on Harty v Nestor [2022] IEHC 108, Dardis v Poplovka (No 1) [2017] IEHC 149 and Cahill v Forristal and O’Riordan v Forristal[2022] IEHC 705.
High Court
Mr Justice Ferriter began by outlining the core duties of an expert witness to the court. The court emphasised that experts were to be independent, objective and have their opinion grounded in fact (see National Justice Compania Naviera S.A v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyds Rep 68). The court also considered the recent decision of Duffy v McGee [2022] IECA 254, in which the Court of Appeal deprecated the “hired gun” practice of choosing experts.
Having considered the general principles, it was held that it was a matter for the court “to evaluate the cogency of the evidence given by any medical expert witness and any question-marks over the weight of that evidence which may arise from the quality of the information on which the expert’s opinion is based, the objectivity of the witness and the quality of the analysis contained in the opinion itself”.
Turning to the HSE’s submission, the court held that the decisions of the High Court regarding the inappropriateness of a solicitor referring their client to a specialist went too far. The court reasoned that plaintiffs who have been injured were entitled to bring a personal injuries action and a solicitor had a duty to their client to advise on engaging a medical expert. In another context, a solicitor did not have to be an engineer to responsibly advise on obtaining an engineering report, the court said.
It was important for any independent expert to be properly informed about a plaintiff’s relevant medical history, the court said. The court said: “A medical expert who is ignorant of material aspects of a plaintiff’s medical and treatment history is not going to be in a position to give meaningful assistance to the court.”
The court also considered the Law Society’s document entitled “Medico-Legal Recommendations” in which solicitors were advised of their duties to fully present their client’s case. In this regard, there would be occasions where a treating doctor would not be able to provide evidence and a specialist expert was required.
Critically, the document outlined that it was appropriate for a solicitor to advise their client to request a referral from their GO to a specialist consultant. Where a GP did not confirm a referral within 21 days, it was appropriate for the solicitor to write directly to a consultant requesting an appointment.
While the recommendations did not have legal status, the court held that it was correct to proceed on the basis that there was nothing inappropriate per se in a solicitor advising a client to obtain an expert opinion.
Mr Justice Ferriter held that it was possible to envisage scenarios where it was not practical to seek a referral from a GP, including inter alia where the GP was not involved in treating injuries or where the GP could not assist in a timely fashion.
The court held that “a solicitor cannot be faulted for engaging a medical expert witness directly in an appropriate case. The critical obligation is to ensure that such a medical expert witness is properly briefed with all relevant information and past medical history and that the medical expert witness prepares his or her opinion thereafter in accordance with his or her overriding duties to the court.”
Decision
In applying the principles to the case, the court was satisfied that Mr Rice’s evidence could be relied on by the court. The court accepted that Mr Rice elicited the necessary information from the plaintiff and there was no suggestion that she had misled him in any way.
Mr Rice was fair and independent in his evidence, the court said. Further, it was notable that one of the HSE’s experts agreed with Mr Rice’s position. While it may have been preferable for Mr Rice to see the GP records, he was not hindered in the absence of the records.
The court held that the plaintiff’s injuries were genuine and awarded €57,500 in general damages, with a further €2,700 in agreed special damages. In so ruling, the court held that the plaintiff was not entitled to any damages for loss of opportunity to work as a nurse.
It was held that the plaintiff opted to not pursue her career goal just a few months after the injury and the decision was not based on medical advice. Further, her stated passion for helping others could be pursued as a human rights advocate. Finally, there was no evidence that the plaintiff was likely to earn less as a lawyer/human rights advocate.
Conclusion
The court awarded the plaintiff €60,272 in damages.
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McLaughlin v. Dealey and Anor. [2023] IEHC 106
