To Refer Or Not To Refer? High Court Provides Further Guidance On Solicitor Referrals To Medical Specialists

• Published date: 13 April 2023
• Subject Matter: Corporate/Commercial Law, Consumer Protection, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Product Liability & Safety, Personal Injury, Food and Drugs Law, Shareholders
• Law Firm: William Fry
• Author: Ms Mary Cooney

Expert evidence is at the heart of all litigation. It can make or break any case.

There has been a flurry of recent case law discussing the proper approach to instructing expert witnesses; in particular the appropriateness of solicitors instructing medical experts to prepare condition and prognosis reports where the plaintiff is not a patient of that medical expert. Condition and prognosis reports, whether prepared by the treating doctor or an independent medical expert, are relied on in all personal injury and product liability cases that result in personal injuries. They enable the court to appraise the plaintiff's alleged injuries.

Background

The case of McLoughlin v Dealey & HSE [2023] IEHC 106 (McLoughlin) considered whether the court should attach less weight to evidence of an orthopaedic surgeon who was called to give evidence, on the basis that the plaintiff had been referred to that expert directly by her solicitor, rather than her GP.

The plaintiff suffered a back injury at work, following which she decided that she could not continue her career as a nurse due to its physically demanding nature. The plaintiff's GP medical notes, produced in court, did not record any ongoing complaints of back pain in the two and a half years following the accident. The plaintiff claimed she was managing the pain and did not feel the need to bring it to her GP's attention. The plaintiff's solicitor referred her to an orthopaedic surgeon who prepared three reports following examinations and consultations with the plaintiff. This evidence was subject to scrutiny by the court.

Recent case law

In Sarah Cahill v Brian Forristal and Rachel O'Riordan v Brian Forristal [2022] IEHC 705 [discussed here], the plaintiffs' solicitor made the referral to an orthopaedic surgeon and a consultant psychiatrist rather than the plaintiffs' GP.

Twomey J opined that a plaintiff's GP should make medical referrals to consultants, who would have the benefit of access to the plaintiff's medical history. He found that referrals by solicitors amounted to prima facie evidence that there was no medical basis for the referral, thereby affecting a plaintiff's credibility and their injuries allegedly suffered.

Twomey J did accept that solicitor referrals may be appropriate in certain circumstances, and he noted that a defendant would be entitled to refer a plaintiff to a different consultant, of the same speciality, for a second opinion.

Findings of the High Court in McLoughlin

Ferriter J in McL...