Posted in Publications on Friday 21 February 2020

Article by Órla Kelly which featured in the December Bar Review (at page 26) regarding the topical subject of solicitor referrals to medical consultants and professionals. This can be an important step in investigating a case which is necessary in order to properly
represent our clients.
https://lnkd.in/drtSjWn

Recently Barr J adversely commented on the practice of Solicitors sending clients for specialist assessment without a General Practitioner (GP) referral, stating:

“I do not think that it is good practice for solicitors to take it upon themselves to decide that their client needs evaluation by a particular medical specialist. That is a medical question which should be decided upon by the G.P ., or by another specialist, who may refer the plaintiff to a different specialist for further investigation.”  Flannery, Ann-Marie v Health Service Executive [2018] IEHC 127

Twomey J made similar comments in dismissing a claim in May 2019:

“Contrary to what this Court would regard as the usual practice, of a GP referring a patient to a consultant, it was a solicitor, with no medical expertise, who referring [the Plaintiffs] to a consultant, for their alleged injuries in order to progress these claims.  The fact that a solicitor, rather than someone with medical expertise, made these referrals led this Court to the unavoidable conclusion that there was no medical need for the referral of the plaintiffs to the consultant, but a legal need to support a claim for damages.” O’Connell v Martin, Ali v Martin [2019] IEHC 571

These obiter remarks by two eminent judges would cause any Plaintiff Lawyer to sit up and take notice.  It calls into question a regular, routine step undertaken by many Plaintiff Solicitors.  These reports (if supportive) are then relied on by Counsel in presenting the case.

What is the usual course of events?

Solicitor referrals can take place for any type of specialist assessment but a referral to a Psychiatrist provides a useful illustration.

Before embarking on litigation, it is axiomatic that a Solicitor takes instructions and explores the various injuries sustained to a Plaintiff following for example a negligent medical procedure.  During the course of this detailed attendance, a Solicitor often finds themselves in the unique and privileged position whereby a client (or their accompanying family member) explains the huge impact the injury has had on their life.  The injury may often include adverse effects on their mood, relationships, ability to sleep, concentration etc.  It is a Solicitor’s duty to probe a little deeper and explore with the client whether they have mentioned this to their GP or treating Consultant. The answer usually elicits comments such as:

  • “I mentioned my low mood in passing to my Consultant but we didn’t really go into it as it wasn’t his/her area and I had more pressing symptoms”,
  • I haven’t been attending my GP since this incident I am under the care of the Consultants at the hospital I have enough appointments.
  • I don’t really talk to anyone about it, I only mentioned it because you asked, but now that you ask, I am not myself, I have constant nightmares and flashbacks since it happened.
  • I would like to see a psychiatrist, counsellor or someone about what happened as I keep mulling it over, but I’m not able to work at the moment, thus I can’t afford another added expense. I even avoid going to the GP as that is expensive. 
  • I’ve lost faith in my GP and a lot of doctors since the negligence happened. I don’t feel like they are on my side.  My GP is part of the problem.

Where appropriate, a Solicitor might then suggest that they may benefit from a Psychiatric assessment.  One explains that if the Psychiatrist thinks there is nothing wrong, then so be it that would be good news and it isn’t include in the case, but if something can be diagnosed and treatment recommended, then surely it is worth knowing.  Furthermore if (and only if) a recognisable psychiatric injury caused due to the subject matter of the proceedings is diagnosed, then will it form a legitimate basis for part of the claim.

Until recently, this was common practice among Irish Plaintiff Solicitors.  However, on the basis of Barr J’s obiter remarks, that is not “good practice”.

What do the Irish Courts say?

The perceived stance of the Irish Courts is based upon obiter comments by Barr J and more recently Twomey J.

The High Court case of Dardis v Poplovka ([2017] IEHC 249 at 156-158) concerned a personal injuries claim arising out of a road traffic accident which left Michael Dardis, a mechanical engineer, unable to work.  The injuries and claim for loss of earnings were significant and therefore various medical professionals were involved.  Understandably the various views warranted close examination.  It seemed that the Plaintiff’s Solicitor referred the Plaintiff for a specialist assessment, that specialist in turn referred the Plaintiff onwards and ultimately the GP fell out of the loop and didn’t receive the various updates by way of correspondence from the specialists, which would be the norm. 

However, this case was an oddity.  The question marks about the referrals arose against the background of an uncertainty as to whether the Plaintiff’s solicitors in fact acted for the Plaintiff and whether they should have been arranging any referrals at all: 

“The Plaintiff explained that he had never given instructions to Messrs. Hussey Fraser to act on his behalf in relation to the personal injury claim. There followed an amount of correspondence passing between the solicitors in relation to whether or not Messrs. Hussey Fraser had ever been instructed to act on behalf of the plaintiff in relation to his personal injury claim. …… While this dispute between the plaintiff and his former solicitors is not directly relevant to the injuries sustained by him, it is an oddity in the case and is relevant to a point made later in this judgment concerning the practice of solicitors directly engaging consultants on behalf of a plaintiff.”

Clearly a Solicitor must have authority to act and should only make a referral to a specialist with the express authority of their client.

Against the background of the above anomalous circumstances, Barr J made the obiter comment that:

“The court is of the view that it is inappropriate for solicitors to refer clients for specialist examination. There are two reasons for this. Firstly, normally, a plaintiff’s G.P. plays a central role in relation to his rehabilitation. Often, the G.P. is the person who is first consulted by the plaintiff in relation to his injuries. He or she deals with the plaintiff on an ongoing basis. His primary aim is to make the plaintiff better. Accordingly, it is the G.P., who should decide when and to what specialist a patient should be referred. A plaintiff’s case is much stronger if the decision to refer him to a specialist is made by the G.P., rather than by the plaintiff’s solicitor.

The second reason why this is preferable, is that if the plaintiff is referred by his G.P. to a specialist, that consultant becomes a treating doctor. This means that he assumes the responsibility of advising the plaintiff as to what treatment is best suited to make him better. He will decide what treatment is appropriate for the plaintiff and will oversee its implementation. If a given course of treatment is not successful in relieving the plaintiff’s symptoms, he will advise what further treatment should be undertaken, or he will refer the plaintiff on to another specialist in a different field. As a treating doctor, he will also liaise with the plaintiff’s G.P. and keep him updated as to the progress of treatment. In this way, there is continuity and communication between the various medical professionals, who are treating the plaintiff at any given time.

When a plaintiff is referred to a specialist by his solicitor, he does not become a treating doctor, but remains merely a reporting doctor. He will give an opinion as to the plaintiff’s injuries and may recommend a possible line of treatment in respect of these. However, he will not communicate with the plaintiff’s G.P., but merely furnish a report to the solicitor.”

At any rate, in the end the evidence of the Plaintiff’s experts was accepted.

As stated above, experience suggests that a client often does not deal with their GP on an ongoing basis or at least does not mention all injuries.

The first of the Court’s concerns is that the GP becomes somewhat out of the loop.  This can be overcome by ensuring that when referring a client to a specialist that a Solicitor requests that that specialist keeps the GP copied on all correspondence, recommendations and treatment plans (which should be the norm in any event).

The second concern is that the Specialist who gets the referral does not become the treating doctor.  The Specialist can become the treating Doctor if they consider it appropriate and in fact that clients often continue with the specialist in question (especially a Psychiatrist) after the litigation has concluded. 

Lastly, as discussed below, it is discouraged (or even prohibited in certain jurisdictions) for treating medical professional to act as a medical expert in their patient’s proceedings.  

In a separate case J Irvine gave judgment in the Court of Appeal case of Fogarty v Cox. ([2017] IECA 309)

Obiter Irvine J went on to caution, “against a practice whereby any solicitor would repeatedly refer clients who have personal injury claims to the same doctor who would then take over the management of their care with a view to later coming to court to give evidence on their behalf. Those are circumstances likely to place the doctor in a conflict of interest situation and are likely to expose them to a risk of being considered less than fully independent when giving their evidence.”

Therefore, again, the Courts cautioned obiter against Solicitor referrals but did not rule it out and indeed in this instance the evidence of an independent expert (in the High Court), to whom the Plaintiff had been referred by their Solicitor, was accepted.

The 2018 case of Flannery v Health Service Executive (Infra at 1) concerned an assessment of damages due to physical and psychiatric injuries sustained by a Mrs Anne-Marie Flannery when a swab was left inside her following the birth of her son.  On that occasion Barr J did prefer the evidence of the Defendant’s expert psychiatrist and not the psychiatrist to whom the Plaintiff had been referred by her Solicitor.  On that occasion, as always, the court had an opportunity to hear the evidence of the two independent but differing experts and form its own view. 

Barr J reiterated his view that “it is the G.P. who should refer the patient on for such evaluation.”

What is the alternative view?

The decision of Barr J deserves respect, but one wonders is there a different view that might be considered and equally given respect. 

a. Obligation to Explore all Avenues

A Solicitor has an obligation to investigate all potential legitimate avenues.  If a client outlines factual symptoms that appear to amount to what might be a psychiatric injury (or other injury warranting further investigation e.g. pain), are they professionally negligent not to consider that aspect of the claim?  Perhaps.

Simply by referring a Plaintiff to a Psychiatrist for assessment and by exploring the possibility of Psychiatric Injury, it does not follow that a Plaintiff will be entitled to damages for same.   One is only entitled to damages, if one has a recognised psychiatric injury, as found in the Diagnostic Manuals such as ICD-10 or DSM-V.  The assessment of whether or not the injury falls within a psychiatric injury (and thus compensatable) requires expert Psychiatric evidence. 

Simply because nobody has referred a client for an assessment, does that mean Solicitors (and Counsel in their advices) should rely on someone else’s judgement of a situation, confound the error and continue to neglect a client’s difficulties?  If a client describes symptoms, such as low mood and depression, is it not remiss or even professionally negligent of a Solicitor to not even refer the client and explore that avenue?   

A claim for Psychiatric Injury requires expert evidence and a Specialist diagnosis.  The Specialist may well diagnose a psychiatric injury of a different variety or severity (as they are trained to do) if a Plaintiff must rely on a GP who doesn’t wish to refer them on, is the Plaintiff to be left with no Psychiatric expert to counter a Defendant’s Psychiatric expert?  

Defendant Solicitors routinely comment that expert psychiatric reports always support a psychiatric injury.  Obviously, is the response!  One cannot claim for psychiatric injury without a supportive expert report with a clinical diagnosis of a recognised psychiatric illness.  It follows that Defendant Solicitors will probably never see an expert psychiatric report which concludes that the Plaintiff does not have a psychiatric injury.  Instead Defendant Solicitors simply receive countless proceedings with no psychiatric element. 

b. Role of the Expert

The inference is that the Court cannot trust these Plaintiff-instructed experts.  The inference is that there is an absence of independence because they were instructed by the Solicitor as opposed to being referred by their GP and consequently that expert report is somehow tainted.  That same allegation of lack of independence could equally be said of the Defendant experts.  Such Defendant experts are not retained following a GP referral.  Rather, the referral is usually from a Claims Handler.  The Defendants are of course entitled to instruct their own independent experts to counter the Plaintiff’s experts (and they routinely do so from their own often quite limited pool of experts).  It is for the experts to demonstrate and stand over support their independent, evidence-based views in their reports and in cross-examination.  Moreover, it is for the Court to retain its role as the ultimate arbiter of the issues.

There is no doubt that the Court must form a view as to whether they prefer the evidence of the medical evidence called by the Plaintiff or the Defendant.  The Court’s view may be influenced by whether or not a GP thought it necessary to refer a Plaintiff to a Specialist, but that it is the height of it, it is merely a factor that might be taken into count depending on the circumstances.  To go beyond that, or infer that there was no basis for a psychiatric injury (despite a Plaintiff expert report which confirms otherwise) or to infer that the Solicitor was wrong to refer the client, is a step too far.  The experts retained by the Defendants will not have seen the Plaintiff as a consequence of a GP referral.  If the route by which a Plaintiff comes to be assessed is a critical factor then it is surprising that some degree of scepticism is not applied to the Defendant expert.

c. Potential for Plaintiff to have no Expert

If a doctor must decide which Specialist a client sees, who refers the Plaintiff to the GP in the first instance?  If the client does not attend his GP, are they stuck in a catch 22 whereby they cannot be referred to any specialist.  What if the GP is a Defendant in the proceedings?  

A treating specialist might be perfectly capable in their field, but not experienced or not agreeable to giving medico-legal evidence.  They may have no knowledge of legal procedures.  They may have a conflict of interest if they know, worked alongside or trained one of the Defendants.  If a treating Consultant refuses or is unable to give evidence, then is the Plaintiff stuck without any expert? 

One asks whether this imprimatur is confined to medical situations?  These comments were made in the context of psychiatric injury but the sentiment was not confined to psychiatric referrals.  It includes referral to all medical specialist assessment.  By extending the logic of the comments, one could ask, does this extend to other non-Consultant experts? Should we refrain from referring cases for engineering inspections?  Similarly, should we refrain from referring to other quantum experts such as physiotherapists, speech and language therapists…the list goes on.  The HSE may not have the resources to provide a service to an injured person but does that mean that a Solicitor can ignore that need and potential benefit to a client’s injuries?  On the contrary, Solicitors have an obligation to investigate and present a case in full.  Solicitors therefore must refer a client, and obtain and present any expert evidence which suggests they would benefit from a treatment. 

The UK and Australian View

Lastly it may be helpful to consider the stance of other jurisdictions.  We do and are entitled to differ but it is interesting to note that their stance conflicts entirely with the comments of the Irish judiciary.

In the UK and Australia, treating Doctors are prohibited from giving evidence.

The UK rules require experts to be impartial, independent and understand that their duty is to the court to give an unbiased opinion.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35#IDASLICChttps://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35/pd_part35

Experts in Ireland have similar duties but the view in the UK and Australia is that, a treating doctor is not unbiased.  It is thus believed that there would be a conflict of interest in allowing a treating medical professional to give evidence in a case.  The medical professional’s duty is to their patient and a medical expert’s duty is to the Court.  The two are not thought to be compatible. 

There is a reasonable view that a treating doctor cannot give an entirely impartial view as to the patient’s earlier condition before the referral to them and to their likely prognosis. The treating doctor has a vested interest in the patient’s outcome and their view could be coloured by a desire to overstate their influence (“they were terrible before I treated them, I’ve done / doing a great job and they’re going to be wonderful in the future thanks to me”).  A known example is where treating orthopaedic surgeons stated that (based on their view) the client was doing as well as could be expected following a joint replacement, however on referral to an independent Orthopaedic Surgeon they were found to be symptomatic and a different treatment plan deemed necessary.

Others believe that giving evidence could have a damaging effect on the doctor-patient relationship.  Many doctors, in particular a psychiatrist will have a close relationship with their patients which could be destroyed by their giving evidence and honest responses to questions about their patients. 

Conclusion

Lawyers have a unique and privileged position wherein their clients come to them at a vulnerable time and trust them with their information.  Solicitors have a professional duty to personally assess the particular situation and all relevant needs, to obtain all relevant independent expert evidence and together with Counsel build and present the best possible, factual case for their client.

Surely then, the Court is more than capable of assessing the strengths and weaknesses of the evidence given by a particular specialist.  It is perfectly proper for a Court to consider the fact that the referral to the specialist was from a Solicitor, as opposed to from a GP.  However, it is respectfully suggested that it is a step too far to dismiss the evidence of a specialist expert, simply because the referral came from a Solicitor.  If GP referrals to a specialist are a necessary prerequisite before the evidence of a specialist is accepted, then, the evidence of all Defendant experts (retained by Claims Handlers) would be excluded.  That would equally be unacceptable.  

Conntact us at Cantillons Solicitors at +353 (0)21 -4275673 or [email protected] if you would like more information.

* In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.


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