The High Court awarded €60,272 to the plaintiff who suffered a back injury while working as a healthcare assistant of the Health Service Executive (HSE). The principle issue for the Court in this case was to assess the weight it should attach to the evidence of the plaintiff’s medical expert on the basis that the plaintiff’s solicitor had referred the plaintiff directly to the expert, rather than her GP.
The plaintiff was a young woman who injured her back when lifting a patient onto a trolley bed and continued to suffer back pain in the years after the incident. As a result, she gave up on her lifelong goal of becoming a nurse due to its physically demanding nature and instead switched career paths, subsequently going back to university to study law.
In her claim, the plaintiff relied on evidence from a medical expert, Mr John Rice, a consultant orthopaedic surgeon. He examined the plaintiff and prepared reports in November 2019, September 2021 and March 2022. He expressed the opinion that the plaintiff would likely continue to experience recurring symptoms from her back injury for a number of years due to her lack of progress with rehabilitation.
Similarily, one of the HSE's experts, Mr Thomas Burke, accepted that the plaintiff was genuine in reporting her symptoms and may be one of the exceptional cases where soft tissue injuries do not fully resolve. However, Mr Aidan Gleeson, a second expert for the HSE, took the view that the plaintiff's soft tissue issues would invariably resolve and did not accept that the plaintiff’s ongoing symptoms were related to the original injury.
At the close of evidence, a legal issue was raised by counsel for the HSE that less weight should be attached to the plaintiff's expert evidence. This was on the basis that, contrary to case law, the plaintiff had been referred to that expert directly for specialist examination by her solicitor and not by her treating GP. It was also argued by counsel for the HSE that, because Mr Rice had not seen the plaintiff’s GP records prior to assessing the plaintiff's injuries, he was not operating with all relevant information to give an informed opinion.
Mr Justice Ferriter held that a solicitor cannot be faulted for engaging a medical expert witness directly in an appropriate case, provided that the expert is properly briefed with all relevant information and past medical history and prepares his opinion in accordance with his overriding duties to the Court.
The Court was satisfied that, in applying the principles to the case, Mr Rice’s evidence could be relied on by the Court on the grounds that Mr Rice was properly briefed with all relevant information from the plaintiff and that the plaintiff was credible in respect of her account of her symptoms. While it may have been preferable for Mr Rice to have been furnished with the plaintiff's GP records, he was not hindered in the absence of those records. In addition, the Court accepted that there are various situations where it may not be practicable for the plaintiff’s solicitor to go through the plaintiff’s GP before seeking a specialist medical legal opinion.
The Court concluded that the full appropriate weight was to be granted to the evidence and awarded €57,500 in general damages, with a further €2,772 in agreed special damages however denied that the plaintiff was entitled to any damages for loss of opportunity.
Following this decision, the Law Society of Ireland's litigation committee developed the Medical Report Protocol which underpins the principles set out by Mr Justice Ferriter.
The new protocol can be accessed on the Law Society website.
Authored by Anne Kelly