PI: undermining the experts

As MedCo enters its second year, there is talk of expanding the system for sourcing medical reports on soft-tissue and whiplash claims from road traffic accident (RTA) cases to other cases.

MedCo provides a framework to connect law firms with independent medical experts in a narrow field of personal injury claims where concerns have been voiced by the government and insurance industry.

The system is designed to deal with a section of the RTA claims sector involving the very simplest cases, both in terms of the mode and extent of any injury consequently sustained. The system is not designed to cope with all types of RTA case, nor any personal injury occurring in another case type.

Since 1 June only medical experts accredited by MedCo can receive instructions through that system. To achieve accreditation, experts had to undertake a modular training course and exam for which 40 continuing professional development hours are awarded. That training focused on RTA cases and the injuries caused by these accidents.

The fee for preparing a first report and updating the MedCo portal is fixed at £180. Doctors who deal with medicolegal cases as expert witnesses have choices about how they spend their time. Our experience is that many have decided it is no longer worth their while to do this work. Specialists such as A&E or orthopaedic consultants with the most experience of dealing with trauma victims are not incentivised to provide their expertise.

They are usually unwilling to work for the fixed fee to provide a first report in such cases. Even if they are willing to work for the higher fixed-fee available for a second medical report, the relatively low number of requests for such reports mean that spending the time to achieve accreditation is not worthwhile.

The consequence is that the expert witnesses best suited to provide medicolegal reports in these trauma cases are less likely to do so.

The gap has largely been filled by GPs and some are very good at this work. But the comprehensive nature of the training required suggests that there was little confidence from MedCo that most GPs possess the basic medical skills, or the knowledge and experience of the law and procedure associated with providing expert evidence, to the standards required.

The outcome is that GPs are providing many reports on traumatic injuries when this is rarely part of their day-to-day expertise. If the potential expansion of MedCo’s remit to other cases is to be based on use of these experts, then this will pose a challenge to lawyers whose professional obligation is to act in the best interest of their client.

In cases other than the most simple and low-value RTAs, that obligation cannot easily be met if the instructing lawyers are obliged to select an expert witness they do not know, and without the confidence that the witness has the knowledge, skills and experience to properly prepare the required evidence. Lawyers for both sides in such cases appreciate that the quality of the medical expert evidence is key to the proper valuation of the case and neither would wish to countenance a challenge to their professionalism for failing to obtain such evidence.

The enormous variety of injuries which fall outside the simple MedCo procedure would make it impossible to devise an expanded system of training and accreditation which guaranteed the quality of evidence already available from experienced medicolegal expert witnesses outside the MedCo process. Nor is it likely to be possible to use the current technology in an expanded form because it was created and designed solely for reporting on simple soft-tissue injury RTA cases.

To attempt to do so would not only invite derision from users and expert witnesses, but might also be the cause of its own failure if those same experts decide that it is easier to spend their time more productively on other medical work.

David Stothard is managing director, MAPs medical reporting