PI Brief Update

What Can MedCo Do About the Crisis in PI? - Dr Mark Burgin

28/02/24. Dr Mark Burgin considers what MedCo with limited resources, diversity and few powers could reasonably do to slow the deterioration in the PI industries performance.

Since MedCo was founded in 2015 as a quasi-regulator the PI industry has changed from an active business run by the best legal brains to an online system run mainly by case handlers. The quality of medical reports has fallen from detailed bespoke individualised opinions to one-size-fits-all computer-generated documents with limited information. The claimants were the centre of the system, now they are threatened by S. 57 fundamental dishonesty and are allegedly bypassed by fake statements of truth.

MedCo has responded by analysing data and performing audits on those users that appear outside the range (although not using AI yet). They have asked questions of solicitors who are instructing experts to change their opinions. They have issued guidance on a few areas such as the types of consulting location permitted. They lack diversity, for instance medical experts are not even on subgroups as observers.

In a recent meeting experts asked whether MedCo could do more given the crisis in PI. The experts were concerned primarily with bad debt and rough poll suggested that 20% of expert fees are written off. This means that assuming £60 a report and 500k reports a total of £6 million a year is being ‘lost’ to MROs and solicitors who disappear when they are asked to pay the expert’s fees. Given that the MOJ believes that experts should be paid £180 per report, experts feel that they should be guaranteed to at least receive the £60 fee for their work.

This example illustrates the problem for MedCo, they are concerned that expert fees have fallen in real terms by 70%. They understand that if you pay peanuts you do not get great reports. They are aware of report factories largely written from claimant and secretary completed data where the expert sees the claimant for 2 minutes. They have raised issues about the OIC portal with the MOJ repeatedly with no response. They know that some administration firms will deal with part 35 questions without the expert input but do not have any powers to intervene.

Reports

MedCo has written few reports over the last 9 years and the content of those reports is largely benign. Apart from the publication of data processing (which is very helpful) they have not felt able to share their experiences dealing with dodgy experts, solicitors and MROs. They are understandably cautious about sharing confidential information. However, they own the data on their system and are not bound by confidentiality about the users.

A report that describes how the report factory works in detail would have a chilling effect on those who use that system. It would also prompt the MOJ to take the problem seriously and (possibly) instruct MedCo to provide granular data. MedCo could also explain why the report factory is poor practice and might cause the expert to be criticised in courts. A law against this behaviour might be found to back up MedCo’s efforts.

When an expert is criticised publicly in legal proceedings then MedCo could write a report considering that individual expert’s actions and why it happened. E.g. if the expert has not provided a mechanism of injury, not examined, not diagnosed that injury, the claimant then it could be that the solicitor instructed the expert to include that injury after the report was written. Or equally the expert may not be able to follow the correct procedure in writing a report and may need further training.

Report writing is challenging and requires substantial skills in analysing situations and crafting of words. The type of people who are good at writing reports are rarely those interested in sitting in meetings. MedCo could consider head hunting people of diversity to work on specific projects and bring the correct skills to the organisation. At the meeting many experts with diverse talents offered their services to assist MedCo in its tasks and I hope MedCo takes up some of those offers.

Guidance

MedCo has given guidance via their limited educational program, on narrow issues such as ‘direct trauma is not a mechanism’ and more usefully as a direct response to individual requests. There have not been any systematic attempts to create guidance, for instance about what a medical report audit should be. This has led to each user and MedCo itself each using a different system. These systems are often in conflict with CPR35 and the duties of an expert meaning an expert must choose between breaking the law or breaking their contract.

Well publicised attempts to introduce audit systems that consider the medical aspects and the legal requirements of a report have floundered. MedCo has not responded formally to my version of the audit and instead have preferred to use their ’20 report audit’ system. The audit subcommittee does not contain any expert report auditors so it seems unlikely that this system will be robust. The experts at the meeting suggested that it is an area where MedCo could improve.

MedCo has not been able to provide a reading list for experts, solicitors and MRO on the knowledge base of PI. This is particularly disappointing given that there are several new articles on PIBULJ and the Law Gazette, as well as my book on the Art of PI report writing. Although the cost of asking Bond Solon for a review of the current literature from may be outside of MedCo’s limited resources, a volunteer would be happy to help.

The CLA 2018 and legal whiplash

The CLA 2018 has a definition of legal whiplash and the Supreme Court Justices are currently deliberating on what whiplash is. The proportion of cases where non whiplash injuries are alleged has risen from 20% to 80% even in LVI cases. The experts reported that case handlers often would request experts to give legal opinions on the correct interpretation of the Act. MedCo has provided the following excellent guidance to individuals who ask for clarification.

‘MedCo’s position is that experts state clearly in their reports whether a particular injury, in their expert opinion, does or does not form part of the whiplash injury as defined in the CLA, and where it does not, the expert should be very clear as to how the claimant states that the injury was caused or where applicable why the expert does not consider the injury to be a whiplash injury (as defined in the CLA). ‘

MedCo could go further and say that it is not the expert’s role to provide legal advice as to the correct interpretation of the CLA. For instance, if a claimant has suffered a head injury, they may not be certain as to the exact mechanism. There could have been a direct impact, a rotational injury or a whiplash mechanism causing the head injury. The expert can say that medically the head injury would be diagnosed separately from medical whiplash.

Often an expert has correctly given a detailed description of the biomechanical mechanisms, the symptoms and signs, given an opinion on the likely medical diagnosis and whether this would be tariff or non-tariff but is still challenged. In the head injury case MedCo should support the expert asking for engineering evidence to get an idea of the forces. MedCo should be against the expert being asked what a judge would decide if the head injury was caused by the whiplash mechanism.

The problem for medical experts is that they are not experts in law, they may be up to date with all the legal cases, have studied law for instance Bond Solon’s superb course but they cannot know how a judge will decide. Legal whiplash has a number of differences from medical whiplash and it is against CPR35 and possibly contempt of court to usurp the court’s role. E.g. it is possible that the courts will decide that pain radiating into the arms from the neck will be determined in law to be a separate injury. The expert can only say that it is likely that the arm pain is coming from the neck.

Conclusions

MedCo is not responsible for the deterioration of in expert’s fees, the increased and sustained pressure on experts to change their opinions and the differences between legal and medical whiplash. MedCo does have some simple techniques available to them that they could use. MedCo could write reports and publish them as discussion papers or to inform the MOJ of problems. They could publish the guidance that they offer individually so that all users can benefit. They could identify resources for users to read to keep up to date.

Noone would criticise MedCo for the limited educational materials for experts, the failure to close down report factories or the worsening quality of medical expert reports. These are outside of MedCo’s ability to influence. They have explained lack of diversity comes from by rules from the MOJ. The MOJ programmers are responsible for the OIC portal being used by 10% of claimants, most of whom need to phone the support centre. This article only suggests how MedCo could improve their communication through reports and guidance.

Housing disrepair (mould) and travel claims (gastroenteritis) have already developed a sullied reputation due to irregularities and court cases. RTA cases have largely avoided reputational damage despite some high-profile cases (excess prognosis, forged statement of truth, failure to examine or diagnose injury). It is possible that we will reach a tipping point with continued falls in the quality of reports, OIC failures and good experts leaving.

The Daily Mail reported on 27 May 2013 that ‘Half of all whiplash claims from car crashes are fraudulent, insurance experts have told MPs’. Since then the reporting has been generally benign with and article on 18 Apr 2020 ‘Compensation for whiplash claims to be slashed’ being a typical example. Whether the Daily Mail will continue to look as benevolently on this industry in the future is questionable if the secrets get out.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

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