PI Brief Update

Claimants are not fundamentally dishonest - Dr Mark Burgin

25/03/24. Dr Mark Burgin explains how claimants are accused of being fundamentally dishonest due to systemic problems in the PI industry and should challenge these judgements.

The last reported figures on fundamental dishonesty ‘S57’ cases indicates that roughly 1 in 500 cases fail in this way. The effects on the person can be devastating, they can lose their houses with fines reported as in the 10s of thousands of pounds. The reasons vary from fake invoices, excessive physio and overstating injuries.

My experience is that a few claimants are a little too keen on increasing their payout. They will mistakenly attribute pre-existing injuries to the current situation, they will ignore other reasons for their time off work and occasionally they will lie. A gullible expert might agree with the claimant’s reasoning but an independent expert will not.

The main reason that third parties raise S57 is that the claim is clearly dodgy. The claimant’s injuries or losses seem disproportionate, expert’s reasoning appears weak and the claim handlers have gone well beyond the evidence. The Swiss cheese theory of errors states that several things have to go wrong for an error to cause harm.

For a fundamental dishonesty claim to succeed the claimant must have been let down by several people. The expert must have written a poor quality report, the claim handler must have failed to give legal advice and the specialist must have argued for the claimant’s case.

Report factories

The functioning of a report factory has been well described but the claimant might not be aware of the signs. The expert does not ask the questions but relies on a secretary and online information. The examination is brief and cursory and no advice is given about the cause of the pain etc.

These reports are light on detail and do not indicate for instance the force of the impact, the damage to the car, the movements in the accident. The description of the injuries is limited to a series of headings with no indication of the type of pain. The injuries are always described as ‘severe’ even when the person was able to return to normal activities.

The replies to questions agree with the claimant and are ‘too good to be true’. They do not contain any medical arguments but instead just make amendments even if they create inconsistencies. The whole report process lacks any real details and appears to be hurried.

These reports are not robust and are easy to take apart by the third party. They make the clamant look unreliable and dishonest by supporting all injuries. They miss critical entries in the medical records and leave the claimant open to attack. They support year long prognoses and the time off work in months without explanation.

Rogue claims handlers

These claims handlers will approach the claimant by asking about pain in the arms, legs and other injuries. As many people have these symptoms from old injuries they will say yes. The claims handler knows that these types of injuries are paid at a higher level. The claimant will then get tricked into claiming for old injuries.

Rogue claims handlers will instruct experts to change their reports if they do not agree with the opinions. Report factories will always comply with these illegal instructions and the report will contain things that the claimant did not say. The rogue claims handlers will double down providing fake statements of truth to persuade experts who remain reluctant.

Where an expert disagrees with the claims handlers opinion they repeat their request four, five or even six times. They know that it takes many hours to reply to each request and most experts will give up. They will refuse to give any evidence to support their client apart from a physio invoice or a photo of the car after several requests.

They will argue that injuries are separate even when the medical evidence is that they are part of the same injury. Third parties can become annoyed by this and decide to instruct their own solicitors. These solicitors will look carefully at every aspect of the case and raise S57 if they can.

They will encourage claimants to make statements that are likely to be false. They will not advise of the risks of S57 or the correct legal procedures that should be followed. They will blame the expert for the delays when often 99% of the delays were due to them. Even claimants returning for a re-examination will be unaware of basic elements of the law.

Rogue claims handlers can make a reasonable claimant appear fundamentally dishonest. They can increase the value of the claim by 5-10 times and encourage the third party to defend it robustly. They can provide false evidence that incriminates the clamant and risks the expert’s professional reputation.

Hired gun experts

Surveys of experts indicates that hired gun experts are a common feature of the PI industry. As noted above, the experts in report factories are generally unable to complete their duties and of the reports are too weak to rely on. This means that for high value cases referral to a specialist is required to firm up a claimant’s case. This is where a referral to a specialist expert who is a hired gun can be useful.

There are a small number of specialists who offer hired gun opinions and they are well known in the industry. They receive most of their work from a small number of rogue case handlers as legitimate solicitors avoid them. ENT, orthopaedics and psychological specialists are the most commonly used hired guns.

They offer opinions that conflict with normal medical opinions, examples are of ENT experts who diagnose catastrophic tinnitus, psychologists who diagnose PTSD and orthopaedics who give extremely long prognoses. These opinions are usually on a background of a moderate rear end shunt.

When the third parties obtain further evidence that indicates that the injury was not as severe or did not occur the hired guns say that the ‘claimant lied to me’. This is a red flag that the expert did not do their job properly. If they had been independent and professional they would have asked for the further evidence in the first place.

It is not uncommon for specialists to fail review or properly read the GP records. To be fair the GP expert should have reviewed the records as they are experts in these complex records. There are apocryphal stories of the claimant being referred to a specialist for the alleged injury a week before the accident.

Conclusions

Few claimants who suffer the severe consequences of a finding of fundamental dishonesty are actually dishonest. Some are ignorant of the law largely because the claims handler has not explained it. Some are encouraged to make rash statements by claims handlers and overstate their case. Replacing solicitors with case handlers was always going to cause an increase in risk.

Experts are a different matter, they are professionals registered with their regulators and should know better. They let down the claimants by writing a poor quality and ambiguous report that makes it easy to misinterpret. They do not question the evidence and then blame the claimant for their mistakes. The claimant is ‘hung out to dry’ by the expert in conflict with the legal and professional responsibilities.

When faced with a S57 decision most claimants are devastated. Their world and the world of their family has been ruined and they do not know how to appeal. There is no legal aid and they already have lost any money that they had. They need someone to review the case and identify where things went wrong. This report could then be used to sue the experts or the case handlers if professional negligence has occurred.

When a person has experienced a traumatic event they need to make sense of what has happened. Their reputation has been destroyed but often were only guilty of being gullible. The professionals concerned get off Scot-Free and may not even be aware of the problem. Challenging the judgement requires the insight of an insider to explain how things went wrong.

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.

Image ©iStockphoto.com/firebrandphotography