Thursday, June 1, 2023

Plaintiff referred to medical expert by solicitor

Ed Madden, BL, looks at a recent High Court case in which the HSE contended that the Court should attach less weight to the evidence of a medical expert who was called to give evidence on behalf of a plaintiff in a personal injuries claim – because she had been referred to him directly by her solicitor, and not by her GP

In March 2023, the High Court delivered its judgment in a case in which a woman who had worked as a full-time healthcare assistant at Limerick Regional Hospital claimed damages against the HSE, arising out of a workplace accident at the hospital in 2018. When the case came on for hearing, the Court was told that the accident occurred while the plaintiff, Charlena McLaughlin, was attempting to lift a patient on a trolley bed with the assistance of another member of staff.

Two days into the hearing, liability was admitted by the HSE and the case proceeded thereafter as an assessment of damages. The Court heard that following the accident, Ms McLaughlin was off work with a back injury for a number of months. In late 2018 or early 2019, she decided that she couldn’t continue working in healthcare due to the physically demanding nature of the work. Giving up on her dream of becoming a nurse, she left her post with the HSE in August 2019, and the following month commenced a degree course in Law and Human Rights at NUIG. At the time of the hearing, she was in her final year of the course.

Ms McLaughlin gave evidence that she suffered lower back pain on and off since the accident. Initially, she experienced stiffness and soreness in her lower back, radiating down to her buttocks and into her legs. While those symptoms had abated over time, she continued to experience pain in her lower back. While much improved, she still had ‘bad days’ where she needed to manage the back pain using over-the-counter anti-inflammatory and painkiller medication, and other
over-the-counter products.

The Court received expert evidence from a consultant orthopaedic surgeon called on behalf of Ms McLaughlin. Expert evidence was also provided by a consultant orthopaedic surgeon and by a specialist in emergency medicine called on behalf of the HSE. Ms McLaughlin’s GP also gave evidence to the Court.

At the conclusion of the evidence, a legal issue was raised on behalf of the HSE to the effect that the Court should attach less weight to the evidence of the consultant orthopaedic surgeon who was called to give evidence on behalf of Ms McLaughlin on the basis that she had been referred to him directly by her solicitor, and not by her GP. The submission was strongly opposed by counsel for the plaintiff, who contended that no allegation of lack of independence or objectivity had been put to the expert, let alone substantiated. His evidence was entitled to no less weight simply because he had been engaged directly by the plaintiff’s solicitor.

Giving his judgment in the case, Mr Justice Ferriter said that subject to the rules of Court and the legal principles applicable to expert witnesses, a solicitor is entitled to advise a plaintiff to engage the services of a medical expert. A solicitor acting for a plaintiff in a personal injuries case does not have to be a medical expert in order to responsibly advise a plaintiff to engage an appropriate specialist medical expert, just as a solicitor does not have to be an engineer in order to responsibly advise the retention of an engineering expert.

If a challenge is to be mounted to the independence of an expert witness, the necessary groundwork for such a challenge needs to be laid in cross-examination. No such challenge was made to the consultant’s objectivity or independence during cross-examination, and the Court had no reason to doubt his independence or objectivity. He had given his evidence fairly, objectively, and in accordance with his duties to the Court. The judge said that the real focus of the HSE’s arguments appeared to be directed not at the expert’s objectivity, but rather at the adequacy of the information he was operating from – in particular, the fact that he had not seen Ms McLaughlin’s GP records before examining her.

While it might have been preferable for the expert to have been furnished with the GP records, Ms McLaughlin had accurately conveyed any relevant medical history to him. Accordingly, he was not hindered in arriving at an objective view of her injuries in the absence of such records.

The judge noted that the expert medical witnesses who gave evidence on behalf of the HSE had not been furnished with the plaintiff’s GP records either, notwithstanding that the records had been discovered by the plaintiff. In like manner, this did not have a material impact on their ability to provide an expert opinion as Ms McLaughlin had also provided them with an accurate account of her relevant medical history.

All of the expert witnesses who examined Ms McLaughlin regarded her as being credible in respect of her account of her symptoms, and the fact that she continued to suffer back pain, intermittently, a number of years on from the accident.

Having examined and weighed the expert evidence on both sides, the judge accepted that she ‘appeared to be in the exceptional category of case where a soft tissue injury continued to be problematic many years after the original accident’, and that it was likely that back pain resulting from the injury would continue to recur. The Court made a total award of damages in favour of Ms McLaughlin against the HSE of over €60,000.

Reference: [2023] IEHC 106

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