The Ministry of Justice has launched a short consultation seeking the views of ‘stakeholders’ on its proposals for whiplash reform: fixed costs for medical examinations/reports and related issues. Hill Dickinson will be providing a response, which is due before 28 May 2014.

The consultation document has been sent, in the form of a letter from Lord Faulks, the Minister of State for Justice, to ‘interested stakeholders’. It asks for views on the proposals set out below. The stated aim is to have the necessary amendments to the CPR and the pre-action protocol for low value personal injury claims in road traffic accidents (the RTA protocol) ready to be implemented in October 2014.

Proposals

An agreed definition of the type of claims covered

A cross industry working group has agreed a definition of ‘Soft tissue injury claim’ to be included in the RTA protocol. It reads:

‘‘Soft tissue injury claim’ means a claim brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury.’

Fixed fees for medical reports

The proposal is for all initial medical reports to be subject to a fixed fee:

£180 for a GP report

£420 for a report from a consultant orthopaedic surgeon (including review of medical records)

£180 for a report from a chartered physiotherapist 

£50 for an addendum report reviewing medical records from a GP or physiotherapist

£80 for answering questions posed under CPR 35.6

The cost for obtaining medical records has also been capped at £80, comprising no more than £30, plus the direct cost from the record holder.

Extra information for medical experts

It is proposed to add provision for a defendant to put its version of events forward to the medical expert, where necessary. The plan is for this to be done via the insurer and the MOJ is asking for input on how this could be best arranged, with the policyholder needing to provide their specific authority for the insurer to do so.

Financial interest in medical reporting intermediary

In the interests of ensuring the independence of medical experts, the MOJ is proposing that a prohibition is introduced on either party having a financial interest in any agency through which a medical report is obtained. It is also asking for input on further measures to make sure, for example, that reciprocal arrangements cannot be established between firms to subvert the prohibition.

The MOJ is also asking for views on what should happen if a claimant does obtain a report outside of the fixed fee scheme.

Pre-med offers

Finally, in connection with pre-med offers, the consultation discusses what should happen if a claimant obtains an initial report outside of the fixed fee scheme. It suggests that, in this situation, the defendant should be able to make what it terms a pre-medical offer, albeit this is a slightly unusual description given that there would in fact be a medical report in existence. Claimants are arguing that the only sanction in this situation should be that the cost of the report cannot be recovered.