Solicitor Referral in a Personal injury suffered at work case
Ms McLoughlin was injured at her workplace when she attempted to lift a patient on a trolley bed. She sued her employer, the HSE.
Medical referral
Judge Ferriter gave written judgment in the case last week ([2023] IEHC 106).
In closing submissions, counsel on behalf of the HSE stated that the plaintiff’s medical expert, an orthopaedic consultant, should be given less weight by the court because the plaintiff was referred by her solicitor rather than her GP. A number of recent High Court judgments have deprecated the approach that solicitors rather than GPs refer plaintiffs to such medical experts with a view to writing a report, and coming to court at a later date to give evidence supportive of the plaintiff’s case.
Decision of the Court
The court very helpfully set out in detail the case law in relation to the use of medical experts as well as their obligation to be fully independent when giving the evidence. Importantly, the judge noted, it was never put to the medical expert in cross-examination that he might be anything other than fully independent. Whereas the plaintiff’s counsel had asked such questions of the HSE’s medical expert. It was put to that expert that he was a defendant ‘hired-gun’ type expert, employed to give evidence unsupportive of plaintiff complaining of soft-tissue injuries. The judge did not accept this submission.
In relation to the plaintiff’s expert, and the fact that it was a solicitor referral, the judge analysed recent cases where the High Court had stated that such referrals were inappropriate.
The judge stated that it did not think that the cases establish a legal principle that it is not open to the plaintiff to engage a medical expert, separate from the plaintiff’s treating doctors, to provide an opinion for use in litigation or that such a course of action is legally impermissible. The judge stated that a plaintiff is entitled to call any witness it wished to call. What is important is that any independently retained expert is properly informed as to the plaintiff’s relevant medical history, has had appropriate opportunity to examine the plaintiff and provides their expert opinion to the court objectively and in accordance with their overriding duty to the court.
The judgment provides very useful clarity for solicitors in the area.
*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.*