Important Statement from the High Court in Relation to seeking independent medical reports

Important Statement from the High Court in Relation to seeking independent medical reports

Much has been made in recent times of the practice of solicitors referring clients to an independent medical practitioner in personal injuries litigation. In a recent judgement Mr Justice Ferriter in McLaughlin v Dealey and HSE, the Court made the point that none of the decisions disapproving of the practice of referring a client to an independent medical practitioner in personal injuries litigation seek to establish a legal principle that it is not open to a plaintiff to engage a medical expert separate form the plaintiff’s treating doctor to provide an opinion for use in litigation or that such a course of action is legally impermissible

There are a number of takeaways from the decision of the court which can be summarised as follows:

1. There is no provision in Irish Law or Court Rules which states that the Plaintiff in a personal injuries action may only call a treating doctor with whom they have ongoing relationship.
2. The Court’s attention was drawn to a Law Society Document going back to November 2008 headed ‘Medico Legal Recommendations’ which contains a protocol for direct referral to consultants by solicitors. The protocol does recommend solicitors writing to the Plaintiff’s GP and requesting a referral to a consultant but advising the GP that if no response has been forthcoming within 21 days that the solicitor may have to make a direct request to the appropriate consultant.
3. The Court accepted that there are various circumstances where it may not be practicable for the Plaintiff’s solicitor to go through the Plaintiff’s GP before seeking a specialist medico-legal opinion.
4. The Court concluded that in light of the duties which a Plaintiff’s solicitor owes to his or her client such a solicitor cannot be criticised or 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 opinions thereafter in accordance with his or her overriding duties to the Court.

This is an interesting commentary on a controversial issue.

For any further information in relation to any litigation matter please do not hesitate to contact Brendan Dillon, Conor Cleary or Donna Phelan on 012960666.