Payne v Shovlin

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 17 December 2004
• Neutral Citation: [2004] IEHC 430
• Court: High Court
• Docket Number: IEHC 430,/[2004]
• Date: 17 December 2004

[2004] IEHC 430

THE HIGH COURT

IEHC 430,/[2004]

[Record No. 17942P/2001]

PAYNE v. SHOVLIN & ORS

BETWEEN

DAVID PAYNE

PLAINTIFF

AND

PHIL SHOVLIN, KEN McDONALD AND MICHAEL HUTCHINSON

DEFENDANTS

Citations:

RULES OF SUPERIOR COURTS (RSC)(NO 6) (DISCLOSURE OF REPORTS & STATEMENTS) 1998 SI 391/1998

RSC O.39 r46

COURTS & COURT OFFICERS ACT 1995 S45(1)

RSC O.39 r46(1)

RSC O.39 r45

RSC O.39 r45(1)(e)

RSC O.39 r50 (1)

RSC O.39 r36(1)

GALVIN V MURRAY & ORS 2001 1 IR 331 2001 2 ILRM 234

KINCAID V AER LINGUS TEORANTA 2003 2 IR 314

COURTS & COURT OFFICERS ACT 1995 S45

O'SULLIVAN V HERDMANS LTD 1987 1 WLR 1047

DERBY & CO LTD V WELDON 1991 I WLR 652

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2001 PARA 17011

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2001

PARA 17012

KENNING V EVE CONSTRUCTION LIMITED 1989 1 WLR 1189

DELANY & MCGRATH CIVIL PROCEDURE IN THE SUPERIOR COURTS 2001

PARA 17013

MCGRORY V ESB 2003 3 IR 407

HAY V UNIVERSITY OF ALBERTA HOSPITAL 1991 2 MED LR 204

IKARIAN REEFER 1993 2 QB 68 1993 FSR 563

HARMONY SHIPPING CO V SAUDI EUROPE 1979 1 WLR 1381

DUNLOP SLAZENGER INTERNATIONAL LTD V JOE BLOGGS SPORTS LTD 2003 EWCA CIV 901 11

RSC O.39 r45(1)(e)

Synopsis:

PRACTICE AND PROCEDURE

Disclosure

Expert evidence - Reports - Disclosure to other parties - Preliminary report of plaintiff's medical expert - Medical expert submitting observations on defendants” expert reports - Whether requirement to furnish report and observations - Rules of the Superior Courts, 1986 (SI 15/1986), O 39, rr 45, 46 and 50 - Rules of the Superior Courts (No 6) (Disclosure of Reports and Statements), 1998 (SI 391/1998) - Disclosure ordered (2001/17942P - Dunne J - 17/12/2004) [2004] IEHC 430

Payne v Shovlin

The plaintiff sought a direction from the Court in respect of the plaintiff’s obligation to disclose the reports of exports intended to be called to give evidence in relation to issues pursuant to the Rules of the Superior Courts (No. 6) (Disclosure of Reports and Statements) S.I. 391 of 1998. A consultant neurologist had prepared a preliminary report and had later prepared a final comprehensive report which, the plaintiff contended, was more refined and informed. The plaintiff sought the directions of the court as to whether or not the plaintiff was obliged to disclose the preliminary report to the defendants.

Held by Dunne J. in directing the disclosure of both reports that the interests of justice would not be served by acceding to the plaintiff’s application. On the contrary, it could be of use to both sides to consider how the consultant neurologist’s views had evolved and changed.

Reporter: R.W.

Ms. Justice Dunne

1 This is a matter which came before me by way of notice of motion dated 19^th April, 2004 seeking the Court's direction in respect of the plaintiff's obligation to disclose the reports of experts intended to be called to give evidence in relation to issues in the within proceedings pursuant to the Rules of the Superior Courts (No. 6) (Disclosure of Reports and Statements) S.I. No. 391 of 1998.

2 The motion came on for hearing before me on 25^th November, 2004 and the motion was grounded upon an affidavit of Michael Boylan, solicitor, sworn herein on 15^th April, 2004. A booklet of pleadings in respect of these proceedings was exhibited therein. It appears therefrom that the plaintiff's claim arises out of a series of events commencing on 16^th November, 2000 when the plaintiff was admitted to St. Vincent's Hospital, giving a history of dizziness, high grade pyrexia, headaches and lethargy and a diagnosis was made of endocarditis associated with a staphylococcus aureus septicaemia. The plaintiff was treated by intervenous antibiotics and warfarin until 18^th November, 2000. On 23^rd November, 2000 the plaintiff was transferred into the first named defendant's care, commenced on low molecular weight Clexane and on 24^th November, 2000 the plaintiff's routine dose of warfarin was restarted. On 28^th November, 2000 for reasons of vascular access, the first named defendants, their servants or agents inserted a right internal jugular catheter which commenced bleeding slightly but continuously from two hours after it was inserted. On 29^th November, 2000 the plaintiff's bleeding became excessive from the site of the catheter insertion, with the development of a large localised haematoma which did not respond to local pressure bandaging and continued to ooze throughout the day. On 29^th November, 2000 the plaintiff began to develop severe headache and loss of visual fields. The plaintiff claims in his pleadings that negligence on the part of the defendants, in failure to consider the effects of the high dose of Clexane therapy along with the effects of warfarin, precipitated a cerebral bleed that was initiated in the afternoon of 29^thNovember, 2000. The failure to monitor the Clexane therapy caused, permitted or occasioned the plaintiff to continue to bleed intra cerebrally without detection and without a reversing of the anticoagulant therapy for a prolonged period of time until 1^st December, 2000 as a result of which, the plaintiff is alleged to have suffered catastrophic injuries.

3 Mr. Boylan in his affidavit states that he was consulted by the plaintiff's wife on 2^nd February, 2001 while the plaintiff was an inpatient at the National Rehabilitation Hospital Dun Laoghaire. He then commenced investigating the circumstances surrounding the plaintiff's admission and care from the period of 16^thNovember, 2000 to 1^st December, 2000. As a first step, the plaintiff's records were sent to Dr. Peter Harvey MAMB. FRCP., Emeritus Consultant Neurologist, to the Royal Free Hospital, London for the purpose of obtaining his preliminary views on the issue of liability in the proceedings. It is further deposed to by Michael Boylan that Dr. Harvey reported to him on 1^st August 2001 with his preliminary views. He, made it clear at that time that the expert views of a number of other specialist would have to be obtained, together with an independent interview with the plaintiff and his wife to clarify certain technical matters arising from the clinical history of the events of November 2000 and that he, would be unable to express his final opinion until then. Subsequently, a report was obtained from Professor Sam Machin, Consultant Haematologist, of University College Hospital, London on 25^th October, 2001. Thereafter it was decided to commence proceedings on behalf of the plaintiff.

4 It is further stated by Michael Boylan in his affidavit that the complexities of the case mean that in preparation for and the conduct of the trial, doctors from a number of disciplines will be required to give evidence in relation to general medicine, cardiology, haematology, bacteriology, neuroradiology and neurology. Reports from experts in these fields have been obtained. He further deposes that Dr. Harvey has compiled a final and comprehensive report which contains his views on the issues of negligence having considered the findings of the haematology, radiology and cardiology experts. Dr. Harvey has indicated to the deponent that the said report contains the substance of his evidence to be adduced at the trial of the action. Further it is deposed that Mr. Boylan has been informed by Dr. Harvey and believes that his views as to liability and causation have evolved and developed since he furnished his preliminary report as a result of consulting with the other experts in the case. The views as expressed in his final comprehensive report are more refined and informed than they were at the time of his preliminary report, and take account of information obtained from the other experts, views expressed by them which were not available to him originally, together with a clinical history obtained from the plaintiff's wife. He also refers in his affidavit to the fact that the drug administration chart from the hospital, which had been lost, has now been reconstructed by the hospital from pharmacy records and that this has also been helpful to Dr. Harvey.

5 In those circumstances, the directions of the court are sought to ascertain whether or not the deponent is obliged to disclose to the defendants, Dr. Harvey's preliminary report for the purposes of preliminary advices and guidance to counsel in drafting.

6 It is further deposed that it is intended that Dr. Harvey would comment on the defendant's expert reports at a later stage for the assistance of counsel in the cross examination of the defendant's medical experts. The deponent referred to other medical negligence cases in which he states that defendants have adopted a practice of employing medical experts on a consultancy basis to prepare analysis, commentaries and critiques of the plaintiff's expert reports. Those defence medical experts are not called as defence witnesses, but would act solely in a consultancy capacity, In those circumstances Mr. Boylan seeks guidance from the court as to whether or not there is an obligation under the definition of reports to disclose Dr. Harvey's written observations on the defendant's case.

7 Finally, Mr. Boylan deposes that he has been advised by counsel that it is only Dr. Harvey's final report containing the substance of the evidence intended to be adduced by him which should be disclosed to the defendants to ensure that the interests of justice are protected balancing on one side the plaintiff's right to legal professional privilege as against the interests of justice served by avoiding trial by ambush and to ensure that the issues are clarified by the exchange of reports prior to a trial.

8 A replying affidavit was sworn herein by Margaret Muldowney, solicitor on behalf of the second named defendant herein. (It should be noted that proceedings against the third named defendant herein have been discontinued). The affidavit of Margaret Muldowney was sworn...