Whiplash compensation needs linking to rehabilitation
When it comes to whiplash it seems the insurance industry is obsessed with trying to drive out costs from the existing system rather than trying to improve the system itself.
One online comment from Paul valuably highlighted the history of how whiplash was previously assessed by jointly approved orthopaedic surgeons and is now subject to GP reports, of which there has been ample press coverage discussing their merits or lack of.
It is unfair to criticise the GPs who are simply servants of a broken process working within constraints they have not designed. In further revision to this broken process Kenneth Clarke is now rumoured to be creating a panel of specialist doctors to review ‘questionable medical evidence’. Such a development is unnecessary and from a practical sense somewhat challenging. It would require a nationwide team of practitioners with access to some as yet unknown medical tests; doctors who are specifically trained in the tests and a simple trigger for escalating claimants to these experts which is agreeable to both sides.
The removal of referral fees/incentive to refer combined with their lack of value to the process has made GP reports of questionable value. By comparison, the data-rich rehabilitation process is typically irrelevant in terms of valuing a claim but holds far more evidence of the injury than the GP could ever hope to have. Consider that a physiotherapist may spend four hours with the claimant over a period of weeks compared to the single 15-minute snapshot available to a GP. Despite this the physiotherapist data is ignored by all.
By focusing the process on a care-not-cash model we would take a big step towards changing society’s beliefs about the personal injury process.
The compensation culture and whiplash as the fraud of choice described in the Gazette story is simply a reflection of the fact that the system rewards injury victims with cash and not care. So long as minor whiplash injuries are compensated with cash payments then it will remain subject to opportunistic claims and disputed medical evidence.
I believe that for minor injuries the victim should receive immediate access to treatment and recovery of out-of-pocket expenses. The concept of placing a cash value on injuries at this level could be removed - compensation is after all the restoration of the status quo. It is simply lazy and counterproductive to buy off claims with cash. Only when the injury fails to respond to treatment or the injury requires in excess of, for example, £750 of rehabilitation costs, should we start to entertain financial compensation. This single step would remove from society the belief that whiplash equals £1,500 and no questions asked.
Rather than work towards a better model the industry seems intent on continuing to fuel the entire compensation culture. The growing trend amongst insurers is to make cash offers without any medical evidence at all - the pre-med offer may give some short-term operational advantages but in the longer term it adds nothing to improving the system.
It started with one insurer knocking on people’s doors, chequebook in hand, and has now been automated into call centres operated by all the major motor insurers. Offers started in the hundreds of pounds but are now routinely over the £1,000 mark. Most recently I am aware of a £25,000 pre-med offer which, much to the distaste of the claimant solicitor, was accepted by the client. Although there is a valid argument that it can be cheaper to pay off such claims than to defend them, such behaviours simply promote the ‘whip-cash’ culture and run contrary to any desire to improve the process.
The current process is fundamentally flawed in that it rewards low-level injuries with cash which in turn fuels claims. Insurers are adding to the demand for claims with their claims-management tactics. The industry is routinely funding and then ignoring the high-quality robust evidence of musculoskeletal specialists to help value claims in favour of advice from GPs, who are constrained by a broken process and who, let’s face it, would be better employed concentrating on other areas of NHS work.
Although the justice secretary is suggesting a fast-track small claims court process to help defend such claims, it still does not remove the fact people will receive cash for their injury if successful. If, however, we moved to a care-not-cash based process for low-level injury claims there would be fewer claims (sorry claimant solicitors!) and injury victims would be provided with what they need rather than what they want.
Andrew Pemberton is director at Argent Rehabilitation