Solicitors are not doctors but they have to be able to understand exactly what is said in all medical reports. Sometimes the language can be difficult but the fundamental principle is that if a solicitor does not understand what is in the medical report then he must get assistance from somebody who does.
In the case of Lopez v. Walker in 1997, a solicitor allowed an injury case to proceed in the Circuit Court relying on a number medical reports, which appeared to indicate that his client’s brain injury was congenital rather than caused by the accident. Reports had been obtained from a neurologist, an orthopaedic surgeon and a psychiatrist and the solicitor was of the view that the content of these reports together with the opinion of his barrister justified the case proceeding in the Circuit Court. There were however certain provisos mentioned in some of the reports and these matters were never followed up. It is not unusual for a medical report to be reasonably definite about the cause of an injury or the long term prognosis but adding that further enquiries should be made about a specific aspect of the injury. This case is authority for the fact that a solicitor must diligently read the medical report and unless he has overwhelmingly strong reason to ignore any of the contents of the report, the solicitor must follow up and eliminate any reasonable directions set out in the medical reports.
This case is also authority for the fact that just because a barrister says that this is the right way to proceed, does not absolve the solicitor from ultimate responsibility. I have come across many cases over the years where solicitors rely entirely on the advice of their barrister and while the advice of barristers is almost always extremely useful and helpful, barristers are not infallible. This last point is particularly important because courts have traditionally held the view that if a solicitor properly instructs a barrister and then follows his advice, he generally cannot be found negligent but this case is authority for the fact that it would be wrong of a solicitor to blindly follow the advice of counsel in the same way that it is wrong of a solicitor to not diligently read, understand and follow up every aspect of a medical report.
Kevin Brophy,
Brophy Solcitors
Brophy Solcitors