Expert testimony plays a pivotal role in personal injury litigation, often influencing the outcome of a case. A recent High Court judgement has offered clear guidance for both Plaintiff and Defence Solicitors regarding when and how medical experts can be instructed directly by solicitors.
The Importance of Medical Expert Evidence
In personal injury claims, condition and prognosis reports prepared by medical professionals are crucial. These reports allow the court to assess the nature and severity of a plaintiff’s injuries, whether the expert is the treating physician or an independent consultant. Questions have arisen, however, about the appropriateness of solicitors directly referring clients to experts, particularly when there is no pre-existing doctor-patient relationship.
McLoughlin v Dealey & HSE [2023] IEHC 106
In McLoughlin, the plaintiff sustained a back injury at work, which led to her leaving a physically demanding nursing career. Although her GP records did not indicate ongoing issues, her solicitor referred her to an orthopaedic surgeon, who subsequently produced multiple reports for the court. The High Court examined whether this type of referral affected the credibility or weight of the expert’s evidence.
Previous Judicial Perspectives
Earlier cases, including Sarah Cahill v Brian Forristal and Rachel O’Riordan v Brian Forristal [2022] IEHC 705, noted that referrals via a GP were generally preferable. A treating doctor’s existing knowledge of a patient’s history can provide a fuller context, whereas solicitor-led referrals might raise questions about the medical basis for the referral. That said, courts acknowledged that solicitor referrals can be acceptable in certain circumstances, and defendants may obtain their own independent assessments for comparison.
Irish High Court Findings on Referrals to Medical Experts
Ferriter J confirmed that solicitors may legitimately advise clients to engage independent medical experts. Key points include:
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Plaintiffs are not restricted to using treating doctors for expert evidence.
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Independent experts must be fully briefed on the plaintiff’s relevant medical history and provided sufficient opportunity for examination.
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Experts must offer objective opinions in accordance with their duty to the court.
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Solicitors are responsible for ensuring the expert complies with these standards, failing which they may not be fulfilling their duty to their client.
In McLoughlin, the court granted full weight to the expert evidence, noting that the plaintiff had accurately disclosed her medical history. Defendants were also entitled to have independent examinations conducted, provided that procedural and disclosure rules were followed.
Law Society Protocol for Commissioning Medical Reports
Following these rulings, the Law Society of Ireland’s Litigation Committee published a Protocol for Commissioning Medical Reports in March 2023. This Protocol provides clear guidance on solicitor-led referrals, reinforcing the importance of briefing experts correctly and maintaining compliance with legal and ethical obligations.
Referrals to Medical Experts in Ireland in Injury Litigation
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Direct Referrals Are Permissible: Solicitors may refer plaintiffs to independent medical experts when it is appropriate and in the client’s best interests.
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Ensure Experts Are Fully Informed: Any expert instructed should have comprehensive access to the plaintiff’s relevant medical history and sufficient opportunity to examine the client.
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Maintain Objectivity: Expert reports must be impartial and comply with the expert’s overriding duty to the court.
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Defendants’ Rights to Independent Assessments: Defendants retain the ability to instruct their own experts, ensuring that all medical evidence is fairly tested.
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Follow Law Society Guidance: The Law Society Protocol for Commissioning Medical Reports sets out recommended best practice for solicitors managing expert medical evidence.
