Month: January 2023

Court rules medical records in months following accident are ‘not only relevant but invariably crucial’ to claim

A farmer suing a mart over alleged injuries to his shin caused by a bull has been ordered by the court to provide the mart with his medical records for five months after the alleged accident.

James Egan, of Ballymacurley, Co Roscommon, claimed Castlerea Co-Operative Livestock Mart Ltd should only see the medical report upon which his claim for damages relies. He argued it should not have access to other medical records from after the alleged incident. He was happy to disclose all of his pre-accident medical records.

Delivering judgment on Tuesday, Mr Justice Michael Twomey said he did not believe the provision of a medical report from the plaintiff’s consultant was sufficient. He said this would deprive the defendant of other post-accident records.

These, said the judge, provide the best evidence of the plaintiff’s medical condition after the accident and may address which of his complaints relate to the accident and which relate to other medical issues.

While noting there is a “significant breach of privacy” involved in disclosing very personal medical documents, Mr Justice Twomey said a plaintiff who decides to seek damages from a defendant for personal injuries waives his right to privacy for his medical condition.

Disclosure of a plaintiff’s medical records has a role in keeping that party honest, he added. This is particularly relevant to personal injuries claims, 97 per cent of which settle before coming to court when medical experts can be cross-examined.

It seemed to the court a plaintiff’s medical records are “not only relevant but invariably crucial” to every personal injuries claim.

In his personal injuries action against the mart, Mr Egan claims a bull damaged his left shin at the mart on November 13th, 2017. He says he has ongoing leg and lower back pain due to the accident.

He disclosed to the mart that he has a history of back pain and a spinal disk bulge and underwent spinal surgery in the 1980s.

At the hearing of the preliminary application, the mart said it needed access to post-accident records to understand the nature and extent of difficulties experienced by Mr Egan in his left leg due to compression of a spinal disk.

It wants to determine for itself which of Mr Egan’s injuries are attributable to the accident and which are not, and the extent of the overlap between pre- and post-accident injuries.

Mr Egan’s counsel did not argue the post-accident medical records are not relevant, instead submitting it was not necessary to disclose them to the defendant, the judge said.

Mr Justice Twomey said there were additional reasons that warranted disclosure of Mr Egan’s records, namely that he had a history of back pain and underwent spinal surgery. It seems clear, he said, that there was a possible overlap between his back and leg complaints arising from the accident and his prior history of disk complaints.

In a personal injuries case there is nothing to stop a plaintiff from going to more than one consultant and relying on only one of their reports in the action. The plaintiff is also in complete control of the medical history he provides to that consultant.

A defendant should not be restricted to a chosen medical report, as there are certain instances where solicitors, rather than general practitioners, refer clients to consultants even though this is in direct contravention of a principle laid out in a High Court judgment, the judge continued.

While it seems clear the majority of solicitors do not contravene this judgment, it is evident that some solicitors continue to do so, he said, citing six instances from the past three years. In such instances a consultant may not have sight of the plaintiff’s GP records or have correct information, the judge added.

There was no evidence before the court to suggest Mr Egan’s solicitor, rather than his GP, had referred him to a consultant.

While the mart was initially seeking discovery of records with no time limit, it subsequently sought post-accident medical records for only five months. Mr Justice Twomey granted discovery for this period.

To read the full story please visit:
https://www.irishtimes.com/crime-law/courts/2023/01/17/farmer-suing-over-bull-injury-must-disclose-medical-records-to-mart/

‘The claimants are asking the rugby governing bodies to make a number of immediate changes to save the sport’

A letter of claim has been sent to World Rugby, the English Rugby Football Union and the Welsh Rugby Union by more than 55 amateur rugby players over a potential brain injury lawsuit.

The group includes several retired women’s international players, elite male players who took part in the sport before it turned professional in 1995, elite youth-teamers and the family of a male rugby player who died due to chronic traumatic encephalopathy (CTE).

A number of allegations have been raised by the claimants, like the potential negligence of the defendants failing to protect the players from neurological impairments like CTE and early onset dementia.

Their focus is on securing damages for themselves and their families in addition to trying to help change the game to make it safer for future generations.

Rylands Garth are behind the case and already represent more than 275 former professional athletes with brain damage, including England’s 2003 World Cup winner Steve Thompson and former Wales captain Ryan Jones, who have issued similar actions against various governing bodies.

Rylands’ Richard Boardman said: “It doesn’t matter what level of the game you played or are playing at, whether it’s at school or adult rugby, and as a professional or amateur, male or female, we are sadly seeing the same alarming neurological impairments at all levels of the game.

“This is a life-and-death issue for many. The vast majority of the current and former players we represent love the game and don’t want to see it harmed in any way.

“We now also represent the estates of deceased players who were found to have CTE postmortem, which is definitive proof that a contact sport was responsible. Those involved just want to make the sport safer so current and future generations don’t end up like them.

“This is why the claimants are asking the rugby governing bodies to make a number of immediate changes to save the sport, such as a mandatory limit on contact in training, reducing non-injury substitutions, having a more effective pitchside diagnostic tool than the HIA, setting up a brain injuries passport, using independent neuro-experts for research and guidance and extending the return to play (following a concussion) to 28 days.”

To read the full story please visit:
https://www.irishtimes.com/sport/rugby/2023/01/19/dozens-of-amateur-rugby-players-send-brain-injury-letter-of-claim-to-rugby-authorities/

Judge forced to abandon case mid-action to work on family law list

Judge Kathryn Hutton highlighted the shortage of judges on Monday when she had to abandon a personal injuries case mid-action in order to tackle the family law list.

The judge had been hearing a case in the Circuit Civil Court when she received the call to move to another court to deal with family law matters.

“I will have to reserve my decision in this case and leave to take up the list in Phoenix House,” she said. “We are all aware of the fierce shortage of judges.”

Judge Hutton had almost finished dealing with her first case involving a Dublin man who had complained of injuries to head, neck, back, right knee, right ankle, left wrist, left hand including a broken little finger, and abrasions to his left hip.

Alex Timbal, of Rushbrook Park, Templeogue, Dublin 6W, had told his barrister Conor Kearney that he had been hit by a car while cycling on the Walkinstown Roundabout in December 2018.

He said he had somersaulted on to the bonnet of a car driven by Thomas Slater, Captain’s Avenue, Crumlin, Dublin 12, before being thrown on to the roadway. He said he had been taken by ambulance to Tallaght Hospital where he had undergone a series of X-rays and treatments before his discharge.

Mr Kearney, who appeared with Holmes O’Malley Sexton Solicitors, told Judge Hutton that liability had been conceded by Mr Slater’s insurers and the court was being asked to assess damages on medical evidence.

Judge Hutton said she had been called to take up the family law list in another court and would reserve her decision in this case.

Ms Justice Mary Irvine, former President of the High Court, on her retirement last year criticised what she described as evidence of under investment in the justice system leading to a significant shortage of judges in all courts.

To read the full story please visit:
https://www.irishtimes.com/crime-law/courts/2023/01/16/fierce-shortage-of-judges-causes-personal-injuries-case-to-be-delayed/