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by Mr R Scott-Watson BSc(Hons) MB BS LLB (Hons)(Open) Cert Av Med. Cert MR(2)CUEW DDAM FRCS(Ed)

When looking at any change in the system for PI cases it is important to pick out the positives to see what can be learnt from those. With MedCo the most positive aspect to come out was a very good training system for experts, who all have to have passed the course in order to continue working in the system.

It is regrettable that with the MedCo system the positives stop there. A training scheme without adequate audit is only as good as the rest of the system it is functioning in. It is no use having a system where, having passed the training, the quality of subsequent reports is not monitored. Equally, although timings of reports have to be entered on the MedCo system, no check as to how many ’20 minute’ appointments are being put into each hour by individual experts appears to be being undertaken. I am well aware of several GP Experts who will put over sixteen such appointments in an hour, and still do so.

Another fundamental problem is present in the system. Assumptions are made which are quite unjustifiable but will skew the entire process. The assumptions start with ‘there was an accident so there must be an injury’ through ‘this was an RTA so there must be a whiplash injury’ on to ‘a whiplash injury causes disability’. In fact, just because there was an accident there does not have to be any injury at all, and if there is one it could be very minor. The whiplash mechanism is specifically a rear end impact, impacts from other directions may injure but should not be classed as WAD. Many WAD injuries do not cause disability, only impairment and often minor. Any process that cannot pick out such cases will fail. The MedCo system of assessing these injuries is a process that cannot distinguish the injured from the uninjured.

Prior to the training we had the RTA 3 form. It had the appearance of a form written by someone who had never undertaken this type of examination and puts items in the wrong order. Apart from that the form gives suggestions as to content but no minimum content is obligatory – the result is that some reports are very sparse. The bigger problems with these initial examinations ( I see well over 500 of these reports per year when conducting secondary assessments) is that they are very rarely undertaken with the full medical notes – most are done with none, and as such are largely written by the claimant.

I have yet to see a single one of these reports that later proved to be an accurate representation of the initial symptoms and disability. The most common errors are to record that initial symptoms were severe (they are nearly always reported as such) but failing to note that the disability claimed or medication taken nowhere near fits that description, being much less. The problem here is that most experts have no training in disability and therefore have limited ability to relate claimed symptoms to claimed disability.

In addition, examinations are very rarely complete and conclusions rarely taken from the information given, which is necessarily very incomplete when no contemporaneous notes are examined. I have yet to see one of these reports that identifies this as a potential problem sufficient to defeat the report entirely if those records were to be examined.

Questionnaires are commonly used by GP Experts prior to interview and are filled in by the claimants. The information is then transferred to a computer program by the expert but without detailed examination of the contents.

Timings of reports are a major issue. Common complaints that I hear are experts taking no more than five minutes to fill in a computer form in an interview of quick-fire ,yes and no questions; it is little wonder that these reports are largely of such poor quality and such limited value.

The computer program that many experts use rather compounds the problem. Based broadly on the Incapacity Benefit form of late (and later ESA), it runs on a series of questions with pull -down answers. With IB this was a weak system without free text being required to be added to personalize the report, with RTA3 forms it is even worse. Many of the reports are identical other than the name and address. It is common to see a series of claimed symptoms all described identically – i.e. all initially severe, all improved to moderate to severe. It would not have been difficult to include free text justification for each, but it was not done as this is a process about speed, not about accuracy.

The issue of notes has been dictated by government but the weakness is readily explained. About a year ago I was doing a second examination on a case that appeared clear cut. The initial GP expert report was certainly adequate and had included the General Practitioner’s notes on the case which clearly identified the injuries as claimed. The report identified that there had been an Accident and Emergency attendance but those notes had not been made available. For my report I insisted that they were. The original claim was a minor road accident at work but the A&E notes indicated an injury occurring after work when on a night out in which the claimant had become somewhat intoxicated. A clear example of the severe weakness of the current system.

Medical Reporting Agencies are a necessary part of the process as it is set up, but they are also part of the problem. The fee for an initial report, set at £180, is entirely reasonable but for those who are not set up as Direct Medical Examiners, they will take these initial cases through an agency. The Agency will do a small amount of the work but will take a far greater percentage of the fee – normally well over 50%, sometimes very much more, for what at best could be 10% of the work. The inevitable consequence of a system set up like this is that appointment times shorten and quality massively reduces. This is the entirely unregulated system that we now have. Fortunately it was eventually noticed that numerous ‘Agencies’ suddenly popped up out of thin air once MedCo started, but many seemed to be operating from the same office. Although this has reduced it has not stopped.

So what we had was a system that was broken from the outset. The introduction of training was too slow and the subsequent lack of audit has made the training almost meaningless. The Agencies having a hold over a large proportion of the cases has reduced fees for experts and, especially in the GP Expert market, led to ridiculously short appointment times due to very low fees that they get for each case. That could have been avoided if regulated, but it was not, and so remains.

The recent reforms brought in by Government following consultation will change the scenery. The problem is that nobody knows how, least of all the Government.

The underlying problem is that when people are offered money a good proportion will exaggerate their need( in my experience around 80%) and a smaller but still significant proportion will outright lie (probably nearer 20%, but still very significant). Any system has to be set up to take account of that – so far this is lacking. There are a proportion of claimants and their advisers who will see a bar set at a certain level, above which there is some advantage to themselves, and will go all out to get over the bar. To some extent that already occurs and I am asked at least once a week to change a record of factual information in the records to favour claimant’s cases – I never do so, but I am happy to point out that they can dispute the contents should they wish, it is just that I can only reproduce what the records say which can be unfortunate if they show the mechanism of injury to be very different to the case being presented.

Looking at smaller cases as they currently run, a common scenario is as follows: Claimant has a minor accident; they may never seek any medical advice but some six to twelve weeks later (sometimes longer) they will see an initial GP Expert for their claim, the cases then fall into two categories. The first is those who claim severe initial symptoms, time off work, care and other consequences, but report that they are now fully recovered – at present that claim will be paid even though the claimant may never have been injured and may never have been off work because nothing is checked ( by the time of the GP Expert report there is nothing medically to check that could defeat the claim in the cases that have recovered). The second group again usually claim severe initial symptoms with the expected consequences but claim to have continuing symptoms to some degree – either completely unchanged (very questionable), or partially improved. The initial examination, as I have noted above, is rarely adequate to tell anything and in any event tenderness and restricted range of movement are purely subjective and very easy to fake especially in these very short consultations where inspection and observation for inconsistency rarely seems to feature, although a vital part of the process. Very rarely are these reports detailed enough to see if the claim as stated adds up in any way. A prognosis is given, although rarely with anything like enough evidence to do so, some treatment might be arranged and again there are then two groups left. The canny ones claim to get better within the prognosis, but only just: Their case is never examined in any detail again, so again a claim could have been paid to someone who was never injured at all. These cases, of course, include ‘occupants’ of the vehicle that may never have been at the accident at all but nobody has ever checked.

Those who still claim to have symptoms then are sent to the secondary examiners, such as myself. I do not see cases without the contemporaneous notes, preferably prior to examination but always before the report is finally concluded. It is at this stage that many of these cases fall apart. The problems usually begin with either no corroboration of symptoms in the notes, an examination a few days after the accident ( not the day of the accident as symptoms reasonably may not have developed)which shows little wrong with the claimant, long with an absence of sick notes. That is then related to the GP Expert report which usually gives an entirely different picture, always much worse. The other problem not infrequently encountered is that conditions that genuinely were present as part of the injury were missed at that initial examination either because the examination was too brief, or the expert was not expert enough, or both.

So we have a system in MedCo, that before the reforms certainly got through the cases, but encour aged fraud on an industrial scale. Will the recent Government changes help? We have to see but I very much suspect they will make the situation worse. If you make your starting point to save money, that very rarely turns out to be the outcome. Had they tried to regulate and improve audit and quality, then cost savings could have resulted. Unfortunately we have two major players in the market – the Insurance Companies and the Medical Reporting Agencies, who either appear to have little interest in reducing the claims or have a positive interest in there being as many claims as possible. The insurance industry could do far more, such as encouraging dashcams and other onboard recording devices but most offer no incentive to improve this aspect, which can massively reduce the cost of an investigation following an accident with no independent witnesses, which of course all raises premiums. My example is a driver who reversed into my car in 2015 in the center of Oxford (crowded, nowhere to escape once the reversing lights came on). Even though I showed her the dashcam she still told her insurance company that I drove into her rear (ok it’s a criminal offence but has anyone ever been prosecuted?). Without the camera that would have been a lengthy process to sort out, as well as expensive and a 50:50 split – sending the film sorted it out in seconds.

The Agencies of course make money, and a lot of it, from every case, so realistically expecting them to want to support moves that will reduce their income is unrealistic.

Both the insurance and MRO parts of this business could be regulated -Agencies still purchase cases in effect (it is illegal so they call it something else) thereby filling their caseload and denying others. The allocation system on MedCo greatly favours agencies over Direct Medical Examiners and whilst numerically that is inevitable it is on far too great a scale.

Of course another Government aim is a reduction in car insurance premiums. The latest Insurance industry excuse for higher premiums is more complex vehicles costing more to repair – but a second’s inspection of that argument reveals the holes – if they are too costly to repair they are written off and the owner is paid a percentage of their market value (yes I’ve been there too and was offered 75% of the replacement value in spite of everything being in order). In any event are we expected to think that Insurance Companies have not raised their premiums to cover such costs as they have increased in any event? So will all of this reduce premiums? I suspect pigs will fly long before that happens.

To solve the problem we need a system that is more robust, better (not more) regulated and which is more comprehensive. We need a system where agencies do not take the majority of the fee when the expert does most of the work, and where a comprehensive audit of the quality by sampling is undertaken.

And if you really want to reduce the injuries because the claims have reduced – well let’s try airbags that go off on a rear end impact for both front and rear car occupants: that would make more difference than anything.

RSW. - April 2017

Brett Dixon APIL president. APIL exists to fight to preserve the rights of people who are injured by negligence. I feel very strongly that preserving the rights of injured people should be the concern of every member of society. Those doing the groundwork for injured people are personal injury practitioners, many of whom are APIL members.

by Alec Samuels

EyeLock, a leader of iris-based identity authentication solutions, has been issued U.S. Patent No. 9,613,281, broadly covering the linking of an iris image with a
face image acquired in sequence (during the same transaction) and represents the company’s 45th issued patent.

Dr Bashir Qureshi
• Expert Witness in Cultural, Religious & Ethnic issues in Litigation.
• Expert Witness in GP Clinical Negligence.
• Author, Transcultural Medicine; Dealing with patients from different Cultures, Religions & Ethnicities.
• Former GP & Paediatrics Clinical Public Health Medical Officer, London, UK.

by Joanne Caffrey, Expert Witness in the use of force & management of challenging behaviour