Britain is the whiplash capital of Europe, with more than 1,500 claims a day, including people claiming for whiplash injuries sustained in the most minor of incidents. In May 2011, the House of Commons Transport Committee published a report into the cost of motor insurance, warning that spiralling costs are primarily the result of market dysfunction and, in particular, the escalation of uncontested claims for whiplash injury.
Concerns were raised over the subjective diagnosis of whiplash claims, with many in the market believing the government should bring forward primary legislation to require objective evidence – both of a whiplash injury and its impact on a claimant’s life – before compensation is paid.
Set against this backdrop, there is a recognised need to redress the imbalance within the low-value personal injury claims sector, which predisposes medical evidence to favour the party instructing the medical expert. It comes as no surprise that part of the remit of the imminent Ministry of Justice consultation on whiplash is to look at options for ensuring the independence of medical experts.
The challenge represented by the existing medico-legal process is the undisputable fact that Medical Reporting Agencies (MROs) and the medical experts on their panels are too close to the instructing parties. Current practices for obtaining whiplash medical reports can lead to allegations of biased, poor-quality evidence, driven by the fact that medical experts have become reliant on MROs for their livelihood and the MROs are reliant on a commercial relationship with the instructing party.
These interdependencies can best be described as a supermarket supplier syndrome, caused by the consolidation in the MRO market resulting in two or three main providers dominating panels of experts.
Concerns raised by the Association of British Insurers and claimant practices point to a need for improved independence of medical experts, demonstrable transparency, objectivity and higher-quality evidence in whiplash and low-value personal injury claims. The Association of Personal Injury Reporting Experts (Aspirex), an independent non-profit organisation which exists to promote excellence in the authorship of medico-legal reports relating to whiplash and other forms of personal injury, has also entered the debate.
Aspirex was set up to provide a voice for the medical experts committed to the highest standards of medical reporting. Until now the only voice has been that of trade bodies such as the Association of Medical Reporting Organisations (AMRO), which represents MROs, not doctors. Whilst MROs provide an undoubted contribution, it is right that doctors, who strive to deliver the best possible standards of evidence, are represented.
MROs perform an important role in administering and improving efficiency in the acquisition of medical evidence, particularly in high-value, complex cases. However, the link between the instructing party and the expert panel must be separated from this administrative function. It is not the role of the MRO to be training, peer reviewing or selecting the medical expert panel. Any attempt to do so by MROs, or their trade body, will simply perpetuate the potential for bias because of the obvious commercial interests at play. It is also important for experts to take instructions from a wider range of instructing parties, so that they are never financially beholden to only one or two dominant agencies, which has become the norm in recent years.
At iSaaS we have already taken steps to disrupt the current practices for appointing a medical expert in low-value PI claims; to improve the objectivity and quality of medical evidence. We look forward to taking an active part in the MoJ consultation on whiplash and believe there are additional measures which could be considered to strengthen the independence of medical experts.
Firstly, the introduction of mandatory simultaneous disclosure of evidence to both sides by the expert. Whilst removing the legal privilege of the report, it would level the playing field by allowing both sides to question the expert in the open and reduce the ability of one party to attempt to affect the expert’s opinion prior to disclosure, or hide the report by instructing a second expert.
Secondly, the blinding of expert panels to MROs to avoid so-called ‘expert shopping’. There is an acknowledged trend followed by some larger MROs to give their clients the ability to choose their preferred expert; this practice gives rise to the impartiality of evidence being questioned. With a move to blind panels, instructing parties could be given the opportunity to validate that an expert is suitably qualified and experienced to handle their case, without knowing their specific identity. Technology can be used as an enabler to separate expert selection in this way.
Notwithstanding the anticipated findings of the MoJ, the need for change in medico-legal reporting has become both pressing and compelling and the market must address that need collectively, and to the benefit of genuine claimants, or risk enforced regulation.
Dr David Pearce is chief technology officer at iSaaS Technology Ltd