Equality of arms
A High Court judge has taken aim at plaintiffs’ solicitors referring to medical consultants for the purpose of providing expert evidence. Stuart Gilhooly SC asks why the same ‘rule’ appears not to apply to defendants’ solicitors.
The media, and clearly the general public who consume media, love a personal-injury story. Whether it is a large award or a dismissal, it regularly appears in the most-read sections of the mainstream websites.
The latest viral article occurred just before Christmas, when Mr Justice Michael Twomey took aim at plaintiff solicitors referring to medical consultants for the purpose of providing expert evidence.
In Cahill v Forristal and O’Riordan v Forristal, Mr Justice Twomey referred to what he described as similar criticism of the practice by Mr Justice Barr in Dardis v Poplovka and Harty v Nestor, his own decision in O’Connell v Martin, Ali v Martin, and Ms Justice Irvine in Fogarty v Cox.
While he is indeed correct that Barr J and Irvine J made adverse comments on the practice, they arose in the context of obiter statements that had no bearing on the outcomes of the cases. Indeed, in two of the three cases, the evidence of the solicitor-referred consultant was accepted.
While Twomey J dismissed the cases in which he made his criticism, the other evidence of plaintiff credibility was clearly the most persuasive factor; and his disapproval, sharp and lengthy as it was, was also not decisive in his final decision.
Are judges’ views merited?
It must also be noted that there have been probably hundreds of cases heard before the courts in which a similar situation arose, on which the trial judge either made no comment or, indeed, found the evidence helpful.
It would, however, be wrong to ignore the opinions of three highly respected judges without considering whether these views are merited or if there is another way of looking at this complex situation.
One of the most pressing concerns of Justices Barr and Twomey is that a general practitioner should be involved in the referral to consultants, as otherwise the consultant might not have access to their history or be involved in subsequent treatment.
The Medical Council’s Guide to Professional Conduct and Ethics deals with this issue. While the guidelines agree that a general practitioner should be involved, it also recognises that this is not always the case, and clearly allows for other forms of referral or, indeed, direct access by the patient.
Article 60.3 of the guide states: “Normally, consultants will see patients following referral from their general practitioner or other treating doctor. In some cases, there might be no such referral. In either instance, the patient’s general practitioner should be kept informed of the patient’s progress, unless the patient specifically objects.”
It is certainly my experience that consultants will seek as much background as possible in all such instances, and will usually keep the general practitioner informed of their opinion and any subsequent treatment.
Ideal world
In an ideal world, a general practitioner would always make these referrals, but the world we live in is far from ideal. There are a number of reasons why occasions will arise where a solicitor is correct to make such a referral themselves.
Firstly, general practitioners are extremely busy. Many are unable to take on new patients, and appointments – where obtainable at all, certainly during the winter months – can take weeks. As a consequence, the doctor either may not see the patient or not regard the treatment in question as a priority, given all the other matters a busy GP’s practice has to deal with.
Secondly, some patients do not attend a general practitioner regularly or at all, and may have simply visited an emergency department following the accident.
Thirdly, a general practitioner may feel that a referral is not necessary, but the patient may feel differently.
Credibility issue
The unspoken issue at the heart of the judicial criticism is credibility – both of the plaintiff and the consultant. Surely, if both are deemed to be credible, the manner of the referral is irrelevant. It is inherent in basic training and the code of ethics of all doctors that they would approach the role of giving evidence in an impartial and truthful manner.
This has to start as the basic premise for any court, unless given a reason to believe otherwise.
Indeed, it seems strange that no reference has, at any stage, been made to defendants’ use of consultants. Clearly, they are in a different position to the plaintiff, in that they are responding to evidence already provided – but the basic position is the same.
If a defendant is allowed to choose any doctor from their own panel – some of whom are retired consultants with practices that accept only referrals from insurance companies or PIAB, and others who accept multiple referrals on a regular basis from the same sources, without any judicial comment – then it seems strange that plaintiffs are not allowed to do the same.
Basic concept
This leads us to one of the basic concepts in litigation – equality of arms. As outlined at the outset, the position of the victim has already been undermined to a huge extent by legislation and media bias, so it seems that any judicial direction that limits the evidence a plaintiff can adduce, while placing no such constraints on defendants, is yet another fetter on the rights of an injury victim to proper compensation by the wrongdoer.
The trial judge is tasked with determining the evidence in any given case and reaching a fair conclusion. Having all of the available evidence before them is essential, and it is the duty of the solicitor to ensure that they are provided with this.
If an injured client tells their solicitor that there are injuries they regard as attributable to the accident, and this has not been investigated by a general practitioner or hospital, then in my opinion, a solicitor is obliged to investigate such complaints with an appropriately qualified expert, who in turn is obliged to provide an honest and unbiased opinion.
Where does it end?
If plaintiff solicitors cannot do this, then where does it end? Can engineers not be engaged? What about vocational consultants in serious cases? A solicitor is an officer of the court and is obliged to act in the best interests of the court. It is a matter, then, for the trial judge to determine whether they accept such evidence or not, in the same manner that they approach any other evidence in the case.
It comes down, as it always does, to credibility. If the plaintiff is not believable, then a court may not trust what they tell the doctor in any event. Doctors also rely on a truthful history, and the genesis of the referral will have no bearing on that.
Hopefully, in future, judges will approach this issue on a sensible basis that allows for fairness to both parties in the litigation – and the appropriate evidence upon which to evaluate their judgment.
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Stuart Gilhooly
Stuart Gilhooly
Stuart Gilhooly is a partner with Dublin law firm HJ Ward and Co