Sunday 18 March 2018

€5k per day doctor's fee 'not evidence of lack of independence'

Tim Healy

A FEE of €5,000 per day to a medical consultant for giving evidence in court - which it was claimed was "egregiously excessive" - did not mean he lacked independence or impartiality, the Court of Appeal has found.

Assertions that an expert witness who is paid a larger fee, than those in other cases, is likely to be less independent must be backed up with expert evidence to that effect and not be mere "bald assertions", the court said.

The court made the comments when dismissing an appeal brought on behalf of a teenage boy who claimed a €50,000 High Court award was inadequate compensation as a result of surgery which left him with a condition which caused bed wetting and post traumatic stress.

During the High Court hearing in 2013, counsel for the boy challenged the €5,000 per day fee for a consultant neurologist's attendance in court to give evidence on behalf of the State Claims Agency (SCA) which handled the case on behalf of the defendants, the HSE and a hospital surgeon.

As a result of the intervention by the judge hearing the case, the boy's counsel claimed, in the appeal against the High Court decision, the trial was unsatisfactory.

Counsel argued he was unable to carry out a proper cross-examination in the High Court to establish the neurologist was not impartial. 

Counsel argued the "egregiously extravagant" €5,000 per day fee was "wildly above" anything the SCA could have been expected to pay and was evidence of an "open cheque book" approach.

It also meant the neurologist could not be considered an independent witness but rather an advocate for the defendants.   Such "extravagant" fees incited a witness to give partisan evidence, it was claimed.

It was also argued that because the neurologist was "fed" transcripts of evidence given by other witnesses in the case, this amounted to "prepping" of the expert.

The State side rejected those claims.

Ms Justice Mary Irvine, on behalf of the three-judge Court of Appeal, also rejected those arguments.

She believed the High Court judge should have "put a stop" to the cross-examination once it became clear the boy's counsel did not intend to call expert evidence to support the "bald assertion" the fee was so extravagant that the neurologist should be considered incapable of discharging his obligations to the court.

While the boy's counsel did not directly accuse the neurologist of "accepting a bribe" to give favourable evidence for the defendants, the clear import of the cross-examination was to challenge the honesty, Independence and integrity of the witness, she said.

An expert witness' reputation should be not treated as "a disposable and worthless commodity" and questions which could tarnish their reputation should only be permitted where there will be expert evidence to back it up.

This does not mean the independence of a witness cannot be challenged, she said.

But it does not follow that just because a fee "may seem large or even extraordinarily large" that this is in any way demonstrable of a lack of independence.

It cannot be asserted a witness paid a larger fee than another expert witness is likely to be less to be independent.   The opposite argument could just as readily be advanced, namely that someone charging a lower fee might be viewed as trying to curry favour to obtain more work from the party who retained them, she said.

Ms Justice Irvine also rejected the claim the neurologist was not independent because he had read the transcripts.  There was nothing irregular about this, she said.

She also rejected a claim she should have disbarred herself from hearing the appeal on the grounds of an address she gave in April 2014 to a medico-legal conference hosted by solicitors for the SCA.

She was satisfied the €50,000 award to the boy reasonable and the appeal court should not interfere with it.

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