New rules affecting medical evidence in personal injuries cases will mean a "lot less bluffing" and considerably reduce court waiting lists, a consultants' conference heard last night. The former Progressive Democrats TD, Mr Michael McDowell SC, said that the cost of cases would also be considerably reduced as a result of the regulations introduced in August under new High Court rules and the Court and Court Officers Act.
In future, all reports from doctors will have to be seen by both sides and each side in the action will be entitled to call on the other to admit the contents of a report. This means a doctor would not be required to come to court and give evidence, Mr McDowell told the Irish Hospital Consultants' Association.
"In the past, a doctor appearing for the plaintiff would say that the client has a broken leg in three places and set out the prognosis," he explained.
If one side insists that the evidence be heard in court from the doctor it may end up paying the costs of the doctor's fees, even if the case is won. The decision is at the judge's discretion.
"At the moment, the regime encourages the two sides to exchange reports but if it was a bad report you could keep it back. What is happening is an attempt to reduce trial by ambush, saying `I will keep my powder dry until the case happens'. It means both sides will be able to evaluate the real strengths of their cases and will shorten the whole procedure, with people relying much more on written statements," said Mr McDowell.
It also meant that doctors would not have to spend so much time waiting around to give their evidence. The regulations would also apply to other expert witnesses in personal injury cases, he said.
In his address, "The Doctor as an Expert Witness", to the IHCA annual general meeting, Mr McDowell also examined the new regulations in the context of "swearing doctors" and the difficult role of expert medical opinion evidence in an adversarial system.
"The conundrum is that a jury or judge is supposed to decide between two expert groups and the expert becomes an advocate for one side or the other, rather than a neutral expert. It is a predictable phenomenon that a plaintiff's solicitor will tend to get doctors that will be pro-plaintiff and insurance companies will tend to select doctors that are sceptical."
He said some people had called for the appointment of an independent medical assessor but "you then have to wonder who would decide the case, the judge or the assessor?
"While we have an adversarial system of law there is no escaping this conundrum. Expertise in an adversarial system is, inevitably, to one extent or another, adversarial expertise. And over time an adversarial system is bound to elicit an adversarial response from the group of experts on whom it calls to assist it in progressing the interests of ligitants."