Medico-Legal Expert Reporting - Dysfunction Continues to Rule after 21 years

It may be indulgent to reflect on the last 21 years, but it is a number of years which suggests the coming of age! Having just received a call from an unrepresented claimant on the relatively new Official Injury Claims Portal at 10.56 this morning, conducted the medical at 11.30, and my admin team upload it to the portal at 11.55, I feel it is a good time to consider on the state of play in this dysfunctional and corrupt market place.

In 1999/2000, I was doing a small but regular number of low value whiplash reports for local Leeds based solicitors. I would offer Claimants an appointment the same week and post the report through Nelson & Co, or Walker Morris’s impressive post boxes the same day with a fee of ￡125, which inevitably got paid mostly within 3-12 months.

Suddenly and abruptly all of my work dried up. I remember calling “CH” at the time and asking what I had done to offend his firm, and was simply told that all of their work was having to go through Mobile Doctors, because that loveable rogue Matt Game had done a sweet commissions deal with the darling of the industry (at the time) Claims Direct, but I shouldn’t worry as they were happy to use me and pay me ￡50 less. Charge the Defendants double (￡250), put ￡50 into Colin Poole and Tony Sullman’s gold lined pockets, and add a couple of weeks to the time it actually took to get a report.

A sudden and insightful welcome to the dysfunctional world of Personal Injury, where the paying party is not the instructing party and the actual claimant and defendant are none the wiser to the brown envelopes, lap dancing, ski trips to say the least that go on in their name and with their money, and here was I a young medic thinking I was writing fiercely independent report for the benefit of the Court.

The three tenets of the Medical Reporting Industry by 2000, in order of importance, were:

? How much money the MRO could skim off the experts fee to buy their work from the long list of CMCs, LEI insurers and Solicitors in order to buy the work in.

? How long they could fund the cases for before they solicitor had to dip into their client account and actually pay the bill (that is if they had not already taken it into the office account to plug the hole in the overdraft). Credit that soon and irresponsibly became unlimited.

? How many cases the instructing party could write off with the MRO when they failed, mainly due to their poor case selection and not surprisingly a rapidly reducing lack of governance due to the length of credit and move to 100% write off. Pay what you recover, if you recover and when you recover. What a business model to run the procurement of independent medical evidence for The Court on, but one the MOJ continue to be untroubled by.

? And finally, an administration function that removed the work from the solicitors desk, and aimed to bring a rag tag bunch, mainly of Orthopaedic Surgeons into line and performing to some sort of SLA.

Having, in the early 2000s, resorted to becoming poacher turned gamekeeper (pardon the pun Matthew Game!), there is one part of this function which for the early part of this decade made sense. This was the management of panels of experts, being able to nominate 3, acquire 2-3 sets of medical records from GPs surgeries and hospitals, ring busy consultants for appointments and spend weeks on end chasing them and their part time medico-legal secretaries for reports. It was a tough job that needed some skill, systems and administrative prowess.

However, the not unsurprising and dramatic changes in this sector have since ensued and by 2005:

? 90% of reports are now done by General Practitioners and not Orthopaedic Surgeons. Many of who do a lot of work and have organised back office infrastructure.

? The requirement under the Woolf reforms of 2000 to nominate 3 experts disappeared within 5 years in these low value cases.

? The requirement to spend 6-8 weeks procuring medical records on 99% of cases had disappeared.

? Experts were using online diary availability, removing the endless list of telephone or email chasers for appointments.

? Many experts are completing reports using report writing systems before the Claimant has left the room.

? Agreements had been put in place with insurers to pay for these medical within 90 days in the majority of cases.

Essentially the very birth right and free market driver for the existence of an administrative middle man had already disappeared. Name me one other functional marketplace where someone wanting some goods would be happy to pay ￡130 for administration which cost less than ￡10 to perform. Yet the good ship MRO continued to sail with Rehabilitation commissions driving up physio sessions and combined deals for books of medicals and rehab were going for upwards of ￡200 per case in commissions from the big boys. Physio which, by the way, my extensive data shows actually worsens prognosis in the same cohort of patients based on their “independent” evidence (sample size >300,000 cases)

So there have been a number of bumps in the road along the way, but we now live in a world where the actual cost of providing an agency based administration for these medical experts is considerably less than ￡10 per case. The Expert doing the work is offered ￡50 out of the ￡180 fixed fee, with the rest being split between the MRO and the provider of the work. The actual intervention of a medical agency also categorically delays the procurement of a medical report, and there is little doubt that from the point of view of independence an expert is far more constrained when he/she is working through a bulk contracting arrangement that is tied in from a Legal Expense Insurer/Claims Management Company through a large agency. I think in 2010/11 I wrote and called it the supermarket supplier syndrome. One wrong move that upsets a junior paralegal in a large law firm with a refusal to change a report and the expert risks losing ￡20,30 or even ￡50k worth of income a year. Not only risks, but this has happened with experts being removed from the MROs panel. Hardly the recipe for a report uninfluenced by the exigencies of litigation (Ikarian Reefer Case).

What is more disheartening is that the Ministry of Justice set up MedCo ,?a pseudo-quango, some 6 years ago in order to rid the market of these deep financial links. The net result is that deep financial links are more prevalent than ever before, and have even gone on between board members of the quango, whose directly owned companies in one case have exchanged over ￡100,000 in commissions since its inception, as well as indulging in the use of shell companies, which its parent the MOJ condemned within 2 months of its inception. Yet the directors of the very quango set-up to prevent these practices could see no conflict of interest in maintaining their board positions whilst engaging in the very practices that the organisation was set-up to stop.

That brings me full circle to my mornings work, where the simple process of providing a report for a Claimant was achieved, end to end, in less than an hour. The insurers lobbied the government for 5 years to have claims taken out of the Courts and put into an intuitive and simple process, which is run via an online portal so that Claimants can make a claim quickly and simply and have it settled. Millions of pounds have been spent on creating the IT system that is now run by the Motor Insurers Bureau on behalf of the tax payer. Medical Experts are able to turn reports round far faster and more efficiently (overall statistics that I have seen across a large group of experts shows 98% hit MedCo’s own MRO SLA 2a (35 day report turnaround), and a staggering 91.3% are hitting the same SLA calculated at 20 days). These are figures that Medical Reporting Organisations can only dream of. And to be fair to the defendant insurers, they are paying for ?these reports often as quickly, and even if they haven’t seen them, which helps increase that primary goal of giving the expert complete independence. Yet only 10-12% of reports are being commissioned in this way. I have yet to see the same insurers, who have commented on the efficiency of the experts when they received a report against them, actually commission a report from a direct medical expert when it is their own insured and run through their claims administration arm/solicitor.

There can only be one explanation for this, and that is a sector that is so dysfunctional that when claims are run against their insured they want everything independent, pristine and efficient, but when it is their insured they want to continue to milk the cow until it runs dry. Experts are seeing all the tactics filtering down through the represented part of the new portal. Delaying reports to increase prognosis; ?Trying to persuade Claimants to use their own solicitors and pay away 25% of their damages rather than go down the unrepresented route that the portal was designed for; Always ticking the exceptional injuries and circumstances boxes to try and uplift the damages; adding a trivial, but non-whiplash injury to the claim.

The MOJ have delayed the initial publication of data from the portal usage. It can only be hoped that when the data is released, it is done with full insight and exposure to highlight the dysfunction that continues within the market, rather than a set of bland superficial figures. We want to see those prognostic trends between unrepresented and represented; to see the percentage of “situational anxiety” prognosis between the two groups. I doubt the MOJ will dare publish the truth as it will highlight, what the experts have known for years; It is not the Claimants who are fundamentally fraudulent in the main when bringing claims, but the representatives who coach and goad them to exaggerate their claims for the purposes of finely tuned business models to maximise their 25% of damages uplift. And never has this been so crucial in this new era of a tariffed compensation matrix, when 5 months and 28 days whiplash nets the insurer ￡123.75p and 6 months and one day, plus a bit nervous when driving and a claim for exceptional circumstances, plus ￡60 on the medical and ￡100 on the 6 sessions of Physio brings the revenue line in at ￡428.5, and that is for conducting a process that the Ministry of Justice have defined as “simplifying the process and removing the need for expensive lawyers”. Most odd for a government to allow regulated persons to charge ￡428.50 for a service that they declare is not needed?

What many cannot understand is why an insurer who has already sold a claimant a legal expense insurance policy, who has lobbied to have a self-service system put in place so a Claimant can make their own claim does not have to openly tell their insured that they can make the claim themselves without giving away a chunk of their now limited damages to that insurer, and that by selecting an expert directly they will get a very direct and efficient service where the person actually doing 90% of the work will get the fee for that. Likewise, experts fail to understand why the government’s own language on the expert or agency choice contained within the system is not transparent in telling the Claimant what the real supplier gets paid and what goes in commission and administration to the MRO and legal expense insurer/claims management company if they are chosen. It’s odd, but in all other regulated services, such as insurance brokers, lawyers, stock brokers, it is absolutely incumbent on the professional to make clear what the breakdown of charges is for, yet when it comes to the language the Ministry of Justice has chosen to tell Claimants about an MRO, it stays silent on the fact that over 66% of the fee is being taken for administration which costs less than 5% of the fee to perform.

Life should be so simple. The insurers wanted to unrepresented OIC portal, the government built the portal. Claimants should be told to use the portal, and experts should be picked directly by the Claimant, and regulated by MedCo if they don’t perform. But that would be a functional market would it not?