Can MedCo do the business?
When the MoJ announced that it intended to reform the way that expert reports were commissioned in personal injury cases, it was always likely that the second phase of whiplash reforms would be the most crucial and would hold the key to the success or failure of the reforms as a whole. How could the independence of the expert be secured and how do legislators set about legislating for independence?
What was proposed by the MoJ at the time of the first consultation was that experts would be appointed on a cab-rank basis. However, by the time that the MoJ launched its second consultation early last month, it was also seeking views as to how MedCo would display search results for a choice of independent experts and MROs.
It cannot be entirely surprising that there has been a change of tack. In order to try and deliver the reforms, the MoJ have something of a tightrope to walk:
- if too few experts or MROs are available for selection in any search, then it could be argued that that might represent a restraint of trade; but
- if too many experts or MROs are available for selection in any search, then the chances increase that a familiar name will appear and will be selected if the new system is to allow that.
The idea of adopting a cab rank rule approach to expert selection would be the most certain way of securing independence. If the process were designed this way, then not only would the expert be independent, but they would be seen to be independent and the MoJ would have achieved its stated aim in the most direct way. The only way to true independence is for there to be a completely random allocation of an independent expert. For whatever reason, the MoJ may think they need to step away from this idea in favour of MedCo offering a choice of experts or MROs.
Those attending the MoJ open forums a few weeks ago were keen to establish what kind of choice MedCo would offer. Some from the claimant side argued that MedCo should offer an unlimited choice of financially independent experts or MROs, leaving them free to select those experts and MROs that they know and trust, effectively rendering the reforms pointless. Perhaps it was not surprising at that stage that the MoJ seemed to be unsure about how the MedCo search result might work and how many experts or MROs might be offered.
What are we actually going to get?
What now seems likely is that when MedCo opens for business in January, if it does not identify a single expert or MRO on a cab-rank principle, then it will be configured in such a way that it offers practitioners a very limited number of experts, or MROs to choose from. Precisely how many choices might be offered is unclear, but we would have thought that three could be an appropriate number, and no more. If more than three experts or MROs are offered in a search, then the chances of a familiar name appearing would be unacceptably high, any fewer and the MoJ would risk a restraint of trade challenge.
Providing claimant lawyers with three different choices is likely to be an approach that will ultimately be judged acceptable by most key stakeholders, rather than one that all stakeholders are actually happy with. It is also a solution with an air of familiarity to it; it has been possible to nominate three experts since the introduction of the original pre-action personal injury protocol introduced as part of the Woolf reforms.
In light of the MoJ’s reconsideration of the cab-rank approach to the allocation of experts, getting the accreditation process right is now essential. Whichever search solution the MoJ eventually decide upon could be rendered an irrelevance if the accreditation process is not fit for purpose.
In our view accreditation should incorporate:
High entry requirements
Compliance with exacting service standards
A robust system of audit
A thorough training programme which is ongoing throughout the expert’s accreditation with Medco
A tough regulatory framework providing clear sanctions for failure to comply
An annual re-accreditation process
We believe that work also needs to be carried out to address a number of medico-legal issues that commonly arise when dealing with whiplash claims:
There is no common, standard medical or legal definition for what constitutes “whiplash”, or even as to whether it in fact exists.
There is a lack of agreement as to when a whiplash injury might be caused.
There is a lack of agreement as to whether there is a minimum speed above which a vehicle must be travelling before an occupant might be injured.
If the panels are to succeed, then we believe that it is essential that all experts that are accredited to the medical panels, insofar as it is possible, are working to common, agreed medical viewpoints and definitions that are set by the MoJ and/or MedCo. We believe that this is something that the MoJ would be well advised to raise with the medical sub-group as early as possible. The medical sub-group might as a minimum draft a list of the key medical literature on the subject.
To ensure consistency and as a minimum, all examinations should be carried out face to face and, in all cases of whiplash, we would suggest that it is made mandatory for the examiner to carry out “Waddell’s Tests”. The results of these tests will help the examiner decide if fraud might be an issue.
We would caution the MoJ from initially placing all experts on the panel as a temporary measure while accreditation is rolled out, unless it is to done with at least some checks and balances in place. If experts are temporarily appointed to the panel en bloc without due consideration, then there would be a danger that “rogue” experts could find their way on the panel, which would threaten the portal’s credibility before the accreditation process even began.
Obligatory previous claims checks
There will be widespread support for the introduction of a previous claims check in motor cases but the introduction of such a step is not without repercussions.
As has recently been seen, due to the efforts undertaken in tackling fraud in the motor arena, fraudsters have moved into other classes of claim, such as noise induced hearing loss and “trip and slip” claims. One of the potential consequences of introducing this part of the reforms is for there to be a further move by those involved in organised fraud, away from motor claims and into employer’s liability and public liability claims. The lack of an obligatory “previous claims” search in these classes of claim leaves them vulnerable to exploitation by the fraudster.
We would recommend that the obligatory “previous claims” data searches should be extended across all classes of claim via the relevant pre-action protocols.
The need for independence in the treatment provider supply chain
The MoJ have rightly identified that a financial link between a reporting expert and the commissioner of the report potentially threatens the independence of the expert and leaves the system open to abuse. We also believe that that proposition is true where there is a financial link between a treatment provider and the claimant’s solicitor.
As claimant law firms struggle to replace revenue lost by reduced commissions from experts and MROs, they will inevitably seek other profit streams. A significant recent problem has been that some claimant organisations are increasing their revenue by increasing the number of referrals for rehabilitation, both for physiotherapy and CBT. Whilst rehabilitation is sometimes the right course of action in certain low value cases, in the case of certain claimant law firms it is often the case that even if a claimant does not in fact require or request treatment he or she is encouraged to accept treatment in order that the claimant’s representatives can benefit by making increased profit through referral fees. There have also been instances of fraud in this arena both in terms of false invoicing of treatment costs and claimants not attending for treatment, yet a charge still being made for it.
There is clearly overlap here with the ongoing review of the Rehab Code, but we believe that the introduction of a rule ensuring genuine independence as part of the current whiplash reforms would be the quickest and most effective way of addressing the flaws in the current system.
As we see it, a tricky path lies ahead for the MoJ but it is at this stage of the reforms that the battle for independence could be won or lost. It is important that the MoJ have the courage of their initial convictions to steer a path forwards towards genuine independence, as it is only by securing that goal that confidence can return to the process of securing reliable medical evidence in these sorts of claims.
To find out more about the review of the rehab code and the involvement of our Director of Clinical Services, Carole Chantler read Review of the Rehabilitation Code: What you need to know
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.