The High Court has refused a request by a plaintiff in a medical negligence action to withhold a neurologist’s preliminary report from the defendants, finding that it must be disclosed under the expert-report rules.
In a judgment delivered on 17 December 2004, Ms Justice Dunne ruled that Dr Peter Harvey’s report of 1 August 2001 came within the rules because it probably contained the substance of evidence he was intended to give at trial. She found no basis to exempt it in the interests of justice.
The plaintiff’s claim concerns treatment at St Vincent’s Hospital in November 2000. His pleaded case alleges that the defendants’ failure to account for the combined effects of Clexane and warfarin led to a cerebral bleed, which went undetected until 1 December and caused catastrophic injuries. Those are allegations recounted in the judgment, not findings made on this motion.
The plaintiff’s solicitor said Dr Harvey’s views had developed after he considered other specialists’ reports, further clinical history and reconstructed pharmacy records. The plaintiff argued that only the final report, which contained the substance of the evidence to be given, should be disclosed. The defendants argued that the rules required disclosure of all reports from experts intended to testify and that the plaintiff had not shown why the earlier report should be withheld.
Justice Dunne said the rules did not create an exception for preliminary reports. She noted that the earlier report, together with a haematologist’s report, had been used to assess whether the plaintiff had a cause of action and to help counsel draft the negligence particulars. There was no suggestion that the plaintiff’s pleadings had changed to reflect the neurologist’s evolving views, and no evidence that disclosure would prejudice the plaintiff.
The court also considered the neurologist’s report of 13 April 2004 and concluded that both reports required disclosure. The ruling concerned disclosure under Order 39 Rule 46; it did not decide the underlying negligence claim or determine liability or damages.
Justice Dunne did not decide whether Dr Harvey’s future comments on the defendants’ expert reports would have to be disclosed. She said that would depend on whether the comments contained the substance of evidence he would give on those reports.