A man is claiming more than €350,000 damages against Cork County Council over allegedly developing chronic pain due to a fall.
Brian O’Donovan’s personal injuries action has been paused by the High Court pending a medical examination of him by a second orthopaedic surgeon retained by the council.
Mr Justice David Holland said he would permit that examination because the council has a “genuine difficulty” due to a conflict of evidence between two experts, including an orthopaedic surgeon, who had already examined Mr O’Donovan on its behalf.
The council has admitted liability for a fall in August 2018 by Mr O’Donovan (53), a computer technician in which he sustained an ankle fracture and developed a pulmonary embolism requiring a prolonged stay in hospital.
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The core issue between the sides is whether the fall also caused him to develop chronic regional pain syndrome (CRPS). The alleged CRPS is the basis for what the judge described as “a considerable claim for past and future care” of some €352,000 special damages, including €276,112 for future costs of care, occupational therapy and modification to the family home.
The evidence from medical experts for Mr O’Donovan, who resumed full-time work in January 2019, is that he has CRPS and it was caused by the accident.
An anaesthetist and pain management expert who examined Mr O’Donovan in July 2022 on behalf of the council described CRPS as a collection of symptoms and signs believed to be caused by malfunction of the central and peripheral nervous system, with the main characteristics including prolonged pain, changes in colour and temperature and possible nerve damage. That expert found no evidence of CRPS in Mr O’Donovan’s case.
Mr O’Donovan was also examined by an orthopaedic surgeon retained by the council. The surgeon’s earlier reports contained no finding of CRPS but his report of July 2023 found evidence of CPRS.
Given the conflict between its medical experts who examined Mr O’Donovan, the council applied to have a second orthopaedic surgeon examine him on its behalf.
The judge said the issue in the application was whether the council must be permitted to take steps to support its claim the plaintiff’s expert diagnosis of CPRS and its causation is mistaken.
Lawyers for Mr O’Donovan opposed the application, made the day before his personal injuries action was listed for hearing on January 16th last.
The judge, in a recently published judgment, outlined his reasons for granting the application.
The defence, he noted, accepted it would call only one orthopaedic surgical witness at the trial and it did not suggest any difference between the expertise of either orthopaedic expert retained by it. It accepted the expert whom it wished to call may, or may not, confirm the diagnosis of CRPS and attribute it to the accident.
The dispute was whether, in relation to a single type of medical expertise, a defendant was entitled to canvass a second opinion and effectively require a plaintiff to subject themselves to an examination by a second expert with the same specialty, he said.
The essential test is one of fairness, he said. Having assessed the arguments and relevant law, he said the “strongest” argument against the defence application is that it is “expert-shopping”.
However, he considered the council has a “genuine difficulty” arising from its experts’ contrasting views. On balance, and in the interests of justice, “and whether or not one calls it expert shopping”, it was neither unreasonable nor unfair to ask Mr O’Donovan to submit to an examination by one additional expert, the judge ruled.
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