PI Brief Update

Tricks to Increase Quantum in RTA PI cases - Dr Mark Burgin

29/08/23. Dr Mark Burgin Opens the door on the murky world of requests for amendments and encourages the industry to discuss possible solutions.

Experts are often asked to make changes to their reports. In my experience these changes are sometimes reasonable and reflect a simple misunderstanding of fact. Unfortunately more often they are letters which contain tricks to increase quantum. This is an increasing problem in my opinion partly because of Civil Liability Act 2018 and partly because of the loss of some excellent solicitors from the industry.

The following are a checklist for experts to ensure that they are aware of the reasons that can these requests. The compensators should be able to spot these tricks when they have been employed. Courts can use these to tell the difference between independent and partial experts when writing case reports. MedCo could create a policy to reduce the use of these tricks.

At present there is no system to permit experts to challenge these tricks. This means that experts must suffer the ire of the solicitor and try to remain independent. Experts often report being told by solicitors that ‘everyone else does it’ or even ‘you have reduced our client’s payout. Experts who are following their duty to the court can feel bullied.

I often speak to solicitors and the majority are just as concerned as I am about these tricks. They worry that some reports are vulnerable to fundamental dishonesty challenges. There are reports of hundreds of successful use of fundamental dishonesty. This impacts both the claimant and the solicitor’s cash flow. The simple solution is for all experts to follow CPR35 and remain independent however in the industry surveys many experts indicate that this is not happening.

Fifteen tricks for increasing quantum

1. Refer to Orthopaedics – they typically give a longer prognosis particularly in LVI cases and often confuse pre-existing conditions with accident-related conditions.

2. Non whiplash – a whiplash injury such as radiating pain is reclassified as a separate injury to avoid the tariff. A plausible mechanism of injury is provided.

3. Invent injuries – an amendment request is made for a non-whiplash injury that the claimant stated was not present at the time of the assessment.

4. Extend prognosis – the claimant states that the injury has resolved but took longer than predicted and asks the expert to amend the original report.

5. Pre-existing conditions – the claimant’s memory of previous problems is inaccurate but the expert is bullied into saying that the claimant’s memory should be taken as true rather than review the medical records.

6. Statement of truth – this comes from a well-known legal case where the solicitor wrote a statement of truth and the expert believed it over the claimant’s own statements at the examination.

7. Refer to Psychologist: Psychologists are not trained to review GP records and use psychometrics so will unintentionally attribute pre-existing psychological conditions where the GP records confirm that they are pre-existing.

8. Time off work: GPs sign patients off work for psychosocial reasons, accident related reasons and pre-existing problems so experts need to give their own opinion not rely upon the GP who may not have examined their patient.

9. Concussion: By getting the expert to change their diagnosis from concussion to traumatic brain injury the third party will often increase their payout by many times.

10. Unrelated symptoms: Some experts are swayed by the opinions of the claimant / solicitor that unrelated symptoms were caused by the injury even where there is no logical relationship.

11. Physiotherapy: Physiotherapist will treat claimants following their professional duties and not sperate accident and non-accident-related injuries. This can lead to extensive treatments where only part are reasonably attributable to the accident.

12. PTSD: About 70% of claimants have post traumatic symptoms ‘minor psychological’ following and accident. PTSD is a disease which has specific criteria the key is the threat of death. Blurring PTS and PTSD can lead to a substantial increase in quantum.

13. De minimis: In some claimants there were only a few days of symptoms which is insufficient to indicate an injury. Experts can be asked to ‘diagnose’ shock or discomfort as a medical diagnosis to increase the value of a claim.

14. Tinnitus – pre-existing tinnitus is classified as accident related and mild tinnitus is classified as catastrophic using a non-validated questionnaire.

15. Change opinion: Often there is an ‘amendment’ request to change the expert’s opinion stating that the expert is wrong and the solicitor or claimant’s opinion is correct.

Call to action

If the reader is an expert, then I encourage you to speak to MedCo so that they are aware how widespread the problem is. If you are a solicitor, then raise this problem with your professional bodies and ask for your spokespeople to remove the unfair advantage that these colleagues have. If you are a compensator, then get an expert to check for signs of these tricks. Check the metadata on the PDF to see if it was signed on the date in the report and contact the expert to check that the report you have has not been edited by someone else.

If you are a judge, then write case reports. Since the three cases where my medical reports were published on BAILLI with approval there have been few further case reports on PI. Experts need feedback about what a good medical report looks like. There is a general reluctance to provide medical records to support claimants who are making extraordinary claims. If you receive a request for directions under CPR35.14 please send a copy of your directions directly to the expert.

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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