'Inappropriate' Consultant Reports in Personal Injury Claims
Challenge Medico-Legal Updates
By Josephine Breen, Solicitor/Medico-Legal Advisor.
A recent judgement highlights again how consultants are being used in an ‘inappropriate’ manner by persons claiming damages for personal injuries.
- In Jautusenkiene v Fynes [2024] IEHC 582 the plaintiff alleged that she had suffered lower back pain as a result of a minor traffic accident. She referred herself to hospital, but did not require admission. She did not miss any days of work and her GP reported that she only needed two visits to the GP in total for her injuries, which in the GP’s estimation would have fully resolved within a few months. The GP was also of the view that the injuries did not require specialist advice. Despite this, the Plaintiff submitted two consultant reports in support of her claim for damages, one from a Consultant Psychiatrist and the other from a Consultant Orthopaedic Surgeon. Both reports arose from referrals by the plaintiff’s solicitor.
Mr Justice Twomey was highly critical of this practice and held that the solicitor-referrals were ‘inappropriate’. He did not regard either of the two reports as ‘proper’ medical evidence as there was no medical basis for the consultations that led to the reports, having been generated solely for legal reasons. Instead, he was of the view that the existence of the reports called into question the plaintiff’s credibility.
Ultimately the plaintiff’s case was dismissed and costs were awarded against her.
- In a previous case of Cahill v Forristal [2022] IEHC 705 Mr Justice Twomey had also been critical of the practice of solicitors making medical referrals. He was of the view that referrals made by solicitors amounted to prima facie evidence that there was no medical basis for the referral, undermining the plaintiff’s credibility and their alleged injuries. The Court clarified that this was quite different to the situation where a plaintiff had been referred to a consultant for medical reasons, and then a solicitor for the other side sought a second opinion from a different consultant in the same speciality.
Mr Justice Twomey (at paragraph 4) stated that the High Court was required to highlight the matter once again ‘in the hope that legal practitioners will stop referring their clients to medical specialists (and in the hope that medical specialists will stop accepting those referrals).’
In this case two sisters commuting together were involved in a ‘tip’ in stationary traffic. There was no evidence of damage to the plaintiffs’ car on garda inspection. Despite this, Ms Cahill informed her GP that the other driver had ‘walloped into the back of her car’ and ‘her bumper was damaged’. It was not her GP, however, but her solicitor who referred her to an Orthopaedic Surgeon and a Consultant Psychiatrist for medical assessment.
Ultimately the court held that ‘false and inconsistent’ claims made by Ms Cahill cast doubt on the events presented to support both sisters’ claims. While it was acknowledged that the other sister’s solicitor had not made any ‘inappropriate’ referrals to consultants, both claimants were unsuccessful and costs were awarded against them.
- The practice of solicitors making medical referrals was originally raised by Mr Justice Barr in Dardis v Poplovka (No1) [2017] IEHC149. The plaintiff in that case was involved in a road traffic accident where his stationary vehicle was hit at high speed from behind and his vehicle was written off as a result. The plaintiff alleged that he suffered a very serious soft tissue injury to the muscles and ligaments throughout his spine. Reports of two consultants, a Consultant Psychiatrist and a Consultant Orthopaedic Surgeon, were sought by solicitors purporting to act for the plaintiff. Interestingly, in his own evidence the plaintiff stated that he did not know why he had been referred to a Psychiatrist as he did not have any mental difficulties at the time.
Mr Justice Barr stated (paragraphs 156 - 157):
The court is of the view that it is inappropriate for solicitors to refer clients for specialist examination. There are two reason 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…
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…he will also liaise with the plaintiff’s G.P. …In this way, there is continuity and communication between the various medical professionals…
In addition to the medical reasons set out by Mr Justice Barr above, Mr Justice Twomey in the subsequent cases pointed out that there was also a public interest element, as solicitor referrals placed a strain on medical resources. As a result, genuine patients (i.e. referred for medical reasons and not in order to support a claim for damages) might be delayed in seeing specialists because of solicitor-referred clients/patients.
Further, specialists operating solely on the basis of what they have been told by a plaintiff, without the benefit of a referral letter from a GP setting out the relevant medical history, are at a disadvantage. This may result in mistaken understandings of the plaintiff’s history and condition.
Medical Council launches ‘CAREhub’
You may already be aware that the Medical Council have launched a new independent, confidential service for medical students, doctors, and members of the public who are engaging with its regulatory processes (such as education, training, complaints, investigations and fitness to practice procedures). This is a very welcome development as engaging with regulatory processes can be stressful for those involved.
The service is operated by Lyra Health International and aims to provide a safe space to speak with a qualified professional offering emotional and well-being support. It is hoped that those engaging with the Medical Council will utilise the service if they need it.
You can access CAREhub through self-referral. CAREhub’s online platform can be accessed via Lyra Health International’s website at https://lyrahealthinternational.com/
You can also call the Ireland free 24/7 helpline on 1800 851115, or the out of country 24/7 helpline on +353 818 370 051;
Use the 24/7 chat function on the Lyra Wellbeing Hub;
Or email the clinical team at ukroicustomercare@lyrahealth.com
These details are also available here on the Medical councils website
Challenge Medico-Legal Updates
by Josephine Breen, Solicitor/Medico-Legal Advisor
Josephine has extensive experience in the area of medical negligence defence litigation and health law generally. She has managed and resolved a wide range of healthcare related claims and complaints on behalf of individual healthcare practitioners and healthcare organisations. She has advised on many and varied healthcare-related issues including capacity to consent to medical treatment; confidentiality and disclosure of personal information; public health issues and mental health issues. She has also attended at Coroners Court and Medical Council hearings.
Josephine has been admitted as solicitor in two jurisdictions, having been admitted as a solicitor in the Republic of Ireland in 1998 and as a lawyer in the Supreme Court of Western Australia in 2013.
In Western Australia Josephine worked as a Medico-Legal Case Manager (Solicitor) with MDA National, a leading Australia-wide Medical Defence Organisation. Before that Josephine was a Solicitor with the Department of Health (Western Australia) in their Legal & Legislative Services Unit.