White Dalton specialist motoring solicitor Andrew Prendergast answers your legal questions…
Question:
My claim is ongoing after my KTM 1290 Super Duke GT was dropped by a young lady. The trial has been booked for a few months. Liability has been accepted by the woman/her insurer, but the issue I have is with the medical evidence my lawyer has ordered from a so-called “orthopedic medical specialist”. The specialist said for the second time that I could go back to work after 4 months. However, I still haven’t been back after 18 months and have lost a lot of money because my foot got really injured (I’m an accountant). I want to get a separate orthopedic expert report and not show the second medical report to the defendants. I am concerned because if the defendants saw this, I doubt they would offer me a really low price. Can I get the orthopedic doctor’s report changed? After all I’m paying his bills! Or can I get a different report from a different orthopedic doctor without showing the second specialist’s second report to the other party?
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Answer:
In England and Wales there is something called the Rules of Civil Procedure. Under these rules, this means that the orthopedic surgeon’s duty is to the court, not to you, even if you pay his or her bill. So, if this is the doctor’s expert opinion, I’m afraid. I would be extremely concerned about an expert if he changed his opinion just because you were not happy with it. It would be screaming “gun for hire.” Furthermore, would you change your opinion as a professional accountant just because someone told you to do so? Secondly, obtaining a separate medical expert report at this stage may be problematic. Your attorney cannot disclose the second report without your authority because it falls under something called “privilege.” Without getting too technical, “privilege” can protect communications made between attorneys, clients, and third parties for the purposes of litigation. However, while the second report falls under “privilege”, if you want to call a different expert to do the report, I doubt the Court will order you to disclose the first report you are not happy with. This basically prevents potentially dishonest people from doing “expert shopping” until they get the results they want. In short, talk to your attorney to create a plan to move forward. The end result may be to disclose a report you do not like and apply for permission from a different expert. However, you will need good reasons to persuade the court to make this order, and it will probably cost you money to apply. Finally, as an observation, a judge may have difficulty finding that a leg injury prevented you from returning to work as an accountant unless you have some very good reasons and evidence to support it.
