Independent Medical Examination of Plaintiffs
The Litigation Committee has sent the following letter to the Irish Medical Council:
Independent Medical examinations of a plaintiff by a doctor or consultant on behalf of the defendant is an established practice in litigation where a plaintiff is seeking compensation for injury suffered allegedly at the hands of the defendant(s), his/their servants or agents. Such independent medical examinations are carried out in consultation with the plaintiff’s doctor or consultant. Formerly, the practice was for the plaintiff’s doctor or consultant to be physically present at such an examination. In recent years, that practice has largely been departed from and more commonly the defendant’s doctor or consultant consults with the plaintiff’s doctor or consultant by telephone or by post prior to the examination taking place. In these circumstances, the plaintiff is examined alone by the consultant or doctor for the defendant.
The function to be discharged by the defendant’s doctor or consultant is to establish the nature and extent of the injuries allegedly sustained by the plaintiff and it is well established that no question should be asked of the plaintiff during the course of the examination the answer to which might have a bearing on the issue of liability between the parties to the litigation. The reason for this is that the proper forum for the establishment of the facts and the determination of the issues is the court.
A number of communications have been received in recent times from solicitors concerned that at such examinations questions are occasionally asked which have a bearing on the liability issue. It is appreciated that a thin line divides categories of questions directed to establish what the nature and the extent of the injuries are from questions touching on the liability issue, but it is precisely because the defendant’s doctor or consultant must confine himself to the former that consultation with the plaintiff’s doctor or consultant is an essential part of the procedure whereunder independent medical examinations are carried out.
The Litigation Committee of the Law Society considers that as far as is reasonably practicable, all questions should be put by the defendant’s doctor or consultant to the plaintiff’s doctor or consultant who is better qualified than the plaintiff to distinguish between questions concerning the nature and extent of injuries from questions which touch on the liability issue. We would accordingly appreciate it if you would bring to the attention of your members this Committee’s concern that questions and discussions between the defendant’s doctor or consultant and the plaintiff should be confined only to establishing the nature and extent of the injuries and limiting discussions generally to a minimum. We would emphasise that the doctor or consultant representing the plaintiff is expected to provide full and frank details of injuries to this colleague. In a word, it is both appropriate and expedient that questions to be raised by the defendant’s doctor or consultant should be directed to the plaintiff’s doctor or consultant and that only where it is essential that any questions at all should be directed to the plaintiff himself.
We trust that you and your members will understand the concern of solicitors for their plaintiff client’s interests in connection with such examinations, especially where some clients are unsophisticated and ill-equipped to deal with questions in circumstances where additionally they may feel vulnerable and disadvantages."