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Plaintiff referred to medical expert by lawyer

Ed Madden, JD, discusses a recent High Court case in which the HSE held that the Court should give less weight to the evidence of a medical expert who was called to testify on behalf of a claimant in a personal injury claim, because he had been referred directly to him by your lawyer, and not by your GP

Yon March 2023, the High Court handed down its judgment in a case where a woman who had worked as a full-time healthcare assistant at Limerick Regional Hospital claimed damages against the HSE, arising from an accident at work at the hospital in 2018. When the case went to hearing, the court was told the accident occurred while the plaintiff, Charlena McLaughlin, was trying to lift a patient on a rolling bed with the help of another staff member.

Two days after the hearing, the HSE admitted liability and the case thereafter proceeded as an assessment of damages. The Court heard that after the accident, Ms. McLaughlin was out of work for several months due to a back injury. In late 2018 or early 2019, she decided that she could not continue working in healthcare due to the physically demanding nature of the job. Giving up on her dream of becoming a nurse, she left her position at HSE in August 2019 and, the following month, she began a degree course in Law and Human Rights at NUIG. At the time of the hearing, she was in her last year of the course.

Ms. McLaughlin gave evidence that she had been experiencing low back pain on and off since the accident. Initially, she experienced stiffness and pain in her lower back, radiating to her buttocks and legs. Although those symptoms had lessened over time, she continued to experience pain in her lower back. Although she improved a lot, she still had “bad days” when she needed to control her back pain with over-the-counter anti-inflammatory and pain relievers, and other
over-the-counter products.

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

At the conclusion of the evidence, a legal question was raised on behalf of the HSE that the Court should give less weight to the evidence of the consulting orthopedic surgeon who was called to testify on behalf of Ms McLaughlin on the basis that she she had been referred to him directly by his lawyer, and not by his GP. The submission was strongly opposed by the claimant’s lawyer, who maintained that no allegation of lack of independence or objectivity had been brought against the expert, let alone substantiated. His testimony was not entitled to less weight simply because he had been retained directly by the plaintiff’s attorney.

Giving his ruling in the case, Judge Ferriter said that subject to the Court’s rules and the legal principles applicable to expert witnesses, a lawyer has the right to advise a plaintiff to retain the services of a medical expert. A lawyer acting on behalf of a plaintiff in a personal injury case does not have to be a medical expert to responsibly advise a plaintiff to retain an appropriate specialist medical expert, just as a lawyer does not have to be an engineer to advise responsibly hiring an engineering expert.

If the independence of an expert witness is to be challenged, the necessary grounds for such a challenge need to be laid on cross-examination. The consultant’s objectivity or independence was not questioned during cross-examination, and the Court had no reason to doubt his independence or objectivity. He had rendered his statement fairly, objectively and in accordance with his duties before the Court. The judge said that the real focus of the HSE’s arguments appeared to be directed not at the objectivity of the expert, but at the adequacy of the information with which it was operating, in particular, the fact that it had not seen the records of the doctor of Mrs. McLaughlin’s bedside before examining them. hers.

While it might have been preferable for the expert to have received the GP’s records, Ms McLaughlin had accurately passed on any relevant medical history. Accordingly, she was not prevented from reaching an objective view of her injuries in the absence of such records.

The judge noted that the medical experts testifying on behalf of the HSE had also not received the plaintiff’s GP records, despite the fact that the records had been discovered by the plaintiff. Likewise, this did not materially impact their ability to provide an expert opinion, as Ms. McLaughlin also provided them with an accurate description of her relevant medical history.

All of the expert witnesses who questioned Ms. McLaughlin found her credible with regard to her account of her symptoms and the fact that she continued to suffer from back pain, intermittently, several years after the accident.

Having reviewed and weighed the expert evidence of both sides, the judge accepted that she ‘appeared to be in the exceptional category of a 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 awarded total damages in favor of Ms McLaughlin against HSE of more than €60,000.

Reference: (2023) IEHC 106

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