When Can a Pursuer Refuse to Attend a Medical Appointment Arranged By a Defender?
It has long been established that a pursuer’s personal injury case may require them to attend medical appointments arranged by the defender. In the majority of cases, the pursuer attends the defender’s appointed expert(s) without issues.
If the pursuer refuses, the defender may ask the court to order them to attend. The court would consider the reasonableness of the proposed appointment. The court may be reluctant to order the pursuer to attend a proposed appointment though and instead might decide to “sist” (pause) the case, until the pursuer is willing to co-operate. This issue was discussed in the English case of James v Bailey Gibson:
James v Bailey Gibson & Co (Unreported, 2002)
The case had been stayed (sisted) for 15 months because the claimant refused an examination by a psychiatrist appointed by the defendant. The judge held that the claimant’s case could progress, and all damages except those related to any psychiatric injury could be assessed. This essentially illustrates that barring a pursuer from recovering any damages at all where the pursuer had partially cooperated with some appointments arranged by the defender – would not be proportionate.
There are two main reasons for a pursuer refusing to attend an appointment with a medical expert instructed by the defender. First, that the appointment is too far to travel, it might be short notice or be at an inconvenient time. Second, the pursuer might consider the appointment unreasonable or have concerns about the expert proposed.
Can the pursuer be ordained to travel for an appointment?
McDonald v Western S.M.T. Co. 1945 S.C. 47
- The defender asked the court to order the pursuer to travel from Glasgow to Edinburgh for a medical examination. The pursuer was willing to be examined by the defender’s expert if the appointment took place in Glasgow but objected to travelling to Edinburgh. The defenders were unwilling to arrange for a Glasgow based expert to examine the pursuer, on the basis that the proof was to be in Edinburgh and expecting the expert to travel to and from the proof would be unreasonable. The court’s view was that there is a duty on the pursuer to attend the defender’s examination if it is “reasonably practicable”. Determining what is reasonably practicable is a matter of “circumstance and degree”, and in the present case the pursuer was not being unreasonable in refusing to travel to Edinburgh and the decision was upheld. The defenders reclaimed (appealed) but the original decision was upheld.
It is worth noting, however, that the journey from Glasgow to Edinburgh in 1945 was very different then compared to 2022.
It should also be noted that the obligation to attend a defender’s appointment extends only to medical experts. A pursuer will not be ordered to attend an expert for the purpose of producing a non-medical report for the defender.
Rawlinson v Initial Property Maintenance Ltd 1998 S.L.T. (Sh Ct) 54
- The defenders asked the court to order the pursuer to attend an appointment with an employment expert – who was not medically qualified. The Sheriff considered that if the category of experts a pursuer could be compelled to attend was to be widened, such that employment consultants were subsumed within it, there would be a “real danger” of the pursuer being subjected to unsafeguarded cross-examination. It was held that to force the pursuer to attend such an appointment would constitute an unreasonable invasion of their privacy. The sheriff also commented that had he been of the opinion that the pursuer should attend, he would not have ordered them to do so, but instead would have sisted (paused) the case.
Where there are reservations about a particular expert?
Whilst medical experts should obviously be both impartial and competent – and are, in the vast majority of cases – this is not necessarily a given. A pursuer’s agents may have reason to doubt a particular expert, founded on previous cases or the content of other reports produced; and as a result recommend that their client not attend.
Liverpool Victoria Insurance Co Ltd v Zafar, [2019] 1 W.L.R. 3833
- A GP was producing approximately 5,000 reports per year, and on a number of occasions had produced demonstrably false or inaccurate reports. The GP was held to be in contempt of court, and sentenced to six months imprisonment, suspended for two years. This decision was upheld by the Court of Appeal, which issued additional guidance in relation to the conduct of medical experts, and declared the sentence to be unduly lenient.
A possible solution – Recording examinations?
In cases where there is a dispute, and in order to allow progress of a case, whilst also protecting the pursuer from an inappropriate examination, recording the appointment may be an acceptable compromise. In the interests of fairness, it would be preferable for all appointments – on both sides – to be recorded, but this situation happens very rarely and in practice the pursuer will likely already have been examined, sometimes by multiple experts, before a disputed appointment arises. Issues may arise where the materials relied upon in the examination are considered confidential, where it is argued that recording the appointment may prejudice any future appointments with the pursuer, or if released, then future appointments with other patients/clients. It may also be argued – perhaps less persuasively – that knowing an appointment is being recorded may alter people’s conduct (pursuer or expert), leading to inaccurate results.
Whether it is reasonable to make attendance at an examination contingent upon it being recorded is yet to be considered authoritatively by the Scottish courts. A similar question has been considered in England though.
Mustard v Flower [2019] EWHC 2623 (QB)
- The claimant asked the Neuropsychologist for the defendant, if she could record the appointment. The expert agreed to let her to record the clinical exam, but not the neuropsychological testing. The claimant, accidentally, did not switch off her device. The recording allegedly showed that the expert made serious mistakes in applying the neuropsychological tests, to the extent that the results were “of doubtful value”. The defendants asked that the recordings should be excluded. This was refused, primarily because to do so would tarnish the proceedings with an air of artificiality, given that the criticism levelled at the expert was now known to both parties.
The judge further commented that the sooner there is agreement between the Association of Personal Injury Lawyers and the Forum of Insurance Lawyers that all examinations are to be recorded the better.
On one view, a pursuer could potentially benefit from the defender instructing a clearly biased witness – where the judge finds they cannot rely on the expert witness’ evidence, they will likely defer to the pursuer’s expert.
Palmer v Mantas [2022] EWHC 90 (QB)
- This case concerns the same expert Neuropsychologist as Mustard v Flower – again instructed by the defendant. The judge concluded that the expert’s report was scathing, judgemental, and biased against the claimant – and as a result commented that he “found it difficult to safely rely upon her expertise where it differed from [the Neuropsychologist instructed for the claimant].”
However, this argument fails where there is a real risk that attending a biased expert may have a serious negative effect on the pursuer’s mental health, and as such to recommend attendance would not be conscionable. The judge in Palmer v Mantas, commented that when in the presence of the defender’s neuropsychologist, the claimant “was also visibly distressed”. While it is to be expected that the pursuer may at times be uncomfortable during examination by a defender’s expert, they should not be expected to subject themselves to an inappropriate or unduly biased examination. The difficulty lies in convincing the court that there is a real risk that the expert may not conduct the examination appropriately. These situations are uncommon in practice but Gildeas has experience of dealing with cases where they have arisen.
SUMMARY
In the vast majority of cases, issues like this don’t come up. Many experienced agents will have seen few, or possibly no examples of cases where this has arisen. This piece simply draws attention to potential issues that might arise should a pursuer be asked to attend a controversial appointment with an expert. Rest assured that the team at Gildeas will look out for our clients’ best interests and advise accordingly if or when these situations arise.
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