Medical reports: Work to ensure they address causation
A large number of claim forms prepared by personal injury solicitors in claims exiting the Official Injury Claim (OIC) portal are being returned because of errors, it has emerged.
There is also an ongoing push to ensure that medical reports address causation, according to the minutes of last month’s meeting of the OIC advisory group, made up of key stakeholders from all sides.
The group heard that, when it came to cases being handed over from the OIC to the court process, “a large proportion of court forms are being sent back to issuers due to errors; often missing information, such as the full defendant address”.
It said a system fix was scheduled which would make the inputting of certain text compulsory.
The OIC does not connect directly to the court system but does provide a summary of the information inputted to the portal so that it does not need to be rekeyed.
There was also a lack of clarity over whether claims which were removed from the OIC portal for complex reasons of law relating to causation, and which then litigated, should be referred to the small claims track rather than the fast-track.
The Ministry of Justice asked for a summary of this in writing so it could consider the issue.
The discussion mirrored concerns expressed recently by one insurer that about the low volume of medical reports being received and their failure to deal with causation.
The working group minutes said compensators have reported that “they are not seeing medical reports coming through in the volumes they would have expected”.
But where this was down to technical reasons, it was hoped that updates to the portal would lead to an improvement.
The minutes went on: “It is important that medical reports address causation. Work is ongoing to ensure that this happens; communications have gone out to medical experts and additional training modules have been introduced to the MedCo accreditation process.
“Medical experts are being reminded that they should assess whether an injury is a whiplash injury in accordance with the definition in the [Civil Liability Act], not the appropriate tariff band.”
The meeting heard too about an increase in the albeit small number of representatives instructing physiotherapists, “who often feel they are not qualified to comment on any psychological element of a claim”.
At the same time, there was concern about claimant referrals to psychologists being made without specific explanation as to why that claimant needed to be referred, adding extra disbursements as a result.
Other issues raised in the meeting included:
- The misunderstanding by some that proceedings could be issued for losses pursued away from the OIC portal and then separate proceedings could be issued later in relation to losses pursued through it;
- Some courts developing their own process, such as giving directions based on there being no written statement, despite the existence of the small claims notification form. It was agreed that this would be raised with the courts in question; and
- Plans by the OIC to improve guidance to unrepresented claimants on choosing between a direct medical expert and a medical reporting organisation, as some were struggling to decide.
“Medical experts are being reminded that they should assess whether an injury is a whiplash injury in accordance with the definition in the [Civil Liability Act], not the appropriate tariff band.”
Is an incredibly worrying paragraph. A medical expert is not a legal expert. Lawyers and MROs are currently attempting to push as many claims out of the Tariffed damages into the Non-Tariffed damages part of the claim. The reason is obvious, and yes there appear to be some argument in the definition of “Whiplash” or soft tissue injury. However it is not for a medical expert to become involved in this debacle. It is for a medical expert to state the region, muscles, ligaments, bones or any other damage to tissue that has occurred.
We have seen many times before the stack’em high sell them cheap model pushing experts to comment or categorise things that are outside their area of expertise and then a real judge comes back and criticises them. Like not reviewing records at the time of appointment in holiday sickness cases, despite insurers and lawyers agreeing for years that this shouldn’t happen to save them money. When the case hits a real court then the expert cant take refuge by quoting a meeting of the OIC steering group. The judge hammers him/her.
The same is true here. Experts should not get embroiled in these arguments. They should report the injuries anatomically and give an opinion. And as for MedCo, they are not a regulator, as they keep emphasising, so they also have no right to ask experts to modify the form of their reports based on legal wrangling that plaintiffs and defendants are involved with due to badly written legislation. Leave that to the lawyers. It is a breach of the Ikarian reefer to alter the form and content of an expert’s report.