Following the Government's consultation on changes to the way whiplash claims are handled, new rules came into force on 1 October 2014 which mark the first instalment of significant reforms aimed at reducing costs and spurious claims. We aim to provide a useful summary of these critical changes and take the opportunity to look ahead to further measures which are expected early in 2015.
Fixed Costs for Medical Reports
The cost of initial medical reports for soft tissue injuries in road traffic collisions is now fixed at £180.00, regardless of the type of expert this may come from. A report from a consultant orthopaedic surgeon will therefore be charged at the same rate as a report from a GP. The Government is keen to restrict medical evidence to a single report in most cases. An additional report from another expert may only be obtained where the initial expert expressly recommends it on the basis of a 'justifiable need'.
The cost of a secondary report from certain experts, where obtained, is also now fixed:
- Consultant Orthopaedic Surgeon: £420.00
- Accident & Emergency Consultant: £360.00
- GP/Physiotherapist: £180.00
Secondary reports may be obtained from experts in other disciplines however the need and cost must be justified. We would expect the minimum requirement to be an express recommendation from the initial expert for a further report by an expert in a specified field.
Definition of 'Soft Tissue Injuries'
Fixed costs for medical reports only apply to those which relate to 'soft tissue injuries' in road traffic collisions. For the first time, this now has a definition.
A soft tissue injury claim is now defined as "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.”
Clients should be careful to watch out for an increase in claims where a psychological injury is alleged to be the significant injury in order to 'knock out' a report from the new fixed cost regime. Equally, we may see an increase in claims involving an aggravation of pre-existing arthritic conditions to the spine, rather than "pure" whiplash injuries, in an effort to argue that these are not soft tissue injuries.
This is something to watch out for; experts may arguably have a financial incentive for seeing that their reports fall outside the fixed costs regime.
The Government is keen to discourage insurers from making offers prior to receiving medical evidence. In order to further discourage this practice, a new paragraph 7.44A of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents from 31 July 2013 provides that offers made pre-med will not have costs consequences until after a medical report is disclosed. The reforms do not go so far as to prohibit this practice, however.
Questions to Experts
Insurers and their representatives will now have the opportunity to put the Defendant's account to the initial expert for consideration at the same time as the Claimant's account. This is only an option where liability has been admitted and insurers must have the Defendant's written authorisation to submit their account to an expert.
Where an expert is in receipt of accounts from both parties they must provide one prognosis in the event the Claimant's account is preferred and another in the event that the Court prefers that of the Defendant. This may prove particularly useful where there is a dispute over the circumstances of an accident in promoting earlier settlement and removing the need, in some cases, for insurers to seek their own medical evidence.
Nevertheless, clients should proceed with a degree of caution. One possible effect of having an expert consider accounts from both parties is that the courts will treat the report like a joint instruction and it may prove more difficult for insurers to obtain permission for their own medical evidence at a later stage if they do not like the expert's conclusions. Clients should therefore be especially cautious where a claim is suspected to be fraudulent. Clients are reminded of their right under Part 35.6 CPR to put questions to the expert, which may include putting across an alternative version of events.
Whilst claimants' solicitors can still choose their clients' experts the full benefit of this change may not be felt, but this is nevertheless a welcome development for our clients.
Independence of Medical Experts
The most exciting changes in this area will not come into effect until 2015 and are discussed below. However, clients should still be aware of measures which have just been brought in. Experts who provide a medical report can no longer also provide any treatment they recommend, nor can any of their associates. Treatment must be provided by someone who is independent of the reporting medical expert. However solicitors who are in financial arrangements with experts and treatment providers may still be able to get around this new provision.
Clients can look forward to further significant reforms early in 2015 which will build on those changes explained above. Exactly how these reforms will look and how they will be implemented is not yet known, however the Government's intentions are reasonably clear.
- Medico-legal experts will be required to join a mandatory accreditation scheme which will include a peer review and auditing element to identify sub-standard reporting practices
- Accredited experts who do not meet required standards may be subject to sanctions such as removal of, or restrictions on, their accreditation
- Experts will be banned from having any financial interest in any intermediary through which a medical report is obtained such as a solicitor or separate companies such as those frequently set up by solicitors to capture additional profit from medical reporting and treatment fees
- Claimants will be allocated to accredited experts at random, removing the ability of the Claimant's solicitors to choose experts that they can rely on to be favourable to them
- Fixed costs for obtaining medical records will apply
If you would like further information or advice on any of the issues mentioned above, please contact a member of the team.