SENSE AND SENSIBILITY?
IS IT A ‘CRACKDOWN ON WHIPLASH CLAIMS’ OR ARE THE COALITION GOVERNMENT ASSISTING AND CONDONING INSURER’S (what is often referred to as) ‘BULLY BOY’ TACTICS?
I noted this week, with I have to say, continued disbelief and concern, an article in the Law Society Gazette (page 3) 3 May 2012 – that ‘whiplash’ claims are back on the agenda with the Government proposing to attempt to curb the number of claims involving this type of injury.
Firstly, it appears that there will be an accreditation scheme introduced for medical experts who assess ‘whiplash’ claims. If that is what makes the Government happy….. However, without exception, all of the medical experts whom I have commissioned to prepare reports, ranging from Consultants in various fields such as Accident and Emergency Medicine , Orthopaedic Surgery, Spinal Surgery, Neurosurgeons and Rheumatologists, and the like, all attempt to provide a detailed diagnosis (following a physical medical examination and scrutiny of the patient’s full medical records), with detailed commentary on condition and prognosis (the Claimant must allow the expert access to their full medical records, x-rays and scans) and will for example, consider any pre-existing condition and thereafter, attempt to draw a conclusion as to what, if any, treatment would be of benefit to aid recovery.
Are these experts, many of whom have numerous years of medical practice under their belts, and who generally practice at the ‘top end’ of their profession, really going to be particularly impressed to be told that they have to go on a course and obtain an accreditation badge? I doubt it. What is the point?
Does the Government have any evidence at all that medical experts have misdiagnosed the condition in general terms or are they simply happy for a Consultant Neurosurgeons to be told he is insufficiently qualified to diagnose a ‘whiplash’? The extent of the injury and expected recovery period (prognosis) is sometimes challenged by insurance companies, for example, if a pre-existing condition has exacerbated or ‘made the condition worse’ by a particular period of time, in which case, they can and often do ask for the Claimant to attend a further medical appointment with a doctor of their own choosing (usually by dusting off and nominating an expert from the only too commonly encountered, list of ‘Defendant partisan’ experts some of whom, will invariably, be wheeled out to try to put an entirely different slant on things including that ‘black is definitely white’ and there is absolutely nothing wrong with this person’). This of course does very little to attempt to resolve matters cheaply and/or without the need of Court intervention.
There will of course, sometimes be a difference of opinion between medical experts and it is usually left for each one to then present their cases to the best of their knowledge and experience, to the Court. How is any accreditation badge going to help with such matters? Notwithstanding the above, the Road Traffic Accident Protocol actually encourages (and indeed requires in some instances) the use of GP reports.
GOVERNMENT MEETING THE INSURERS (not a new thing – they seem to meet more and more frequently these days. Have the Government no other concerns to worry about?).
It appears that Justice Secretary Kenneth Clark and Transport Secretary Justine Greening have again met with the insurance industry. You know, the apparently cash strapped and barely functioning industry that has been stamping its feet about not making as much money as it would really like for such a long time.
Some of the plans and ingenious ideas (other than the proficiency badge award referred to above), are to recommend, tougher measures regarding ‘out of Court’ settlements and encourage the insurers to challenge claims they believe are fraudulent. The insurance industry (and anyone else) have never really needed much encouragement and have always been able to challenge fraudulent claims. Indeed, it is the first thing that insurers threaten you with when they acknowledge receipt of the initiating ‘Letter of Claim’, before they have given any due consideration to the actual claim itself (they therefore feel obliged to threaten you before they are prepared to even consider your case). Nothing new there then.
SMALL CLAIMS MADNESS
They are also (and somewhat ludicrously) proposing to raise the small claims threshold in personal injury claims from £ 1,000 to £ 5,000. As most Claimant lawyers will be aware, a large volume of injuries fall within this bracket. With the enshrined inability to recover costs, how are Claimant’s A/ Going to find a lawyer to act in any small claims matter when there is no prospect of them being paid and B/ if costs are not recoverable, why and how would any Claimant representing themselves, be able to present their medical evidence correctly or properly (or even fund it in the first instance) at Court, regardless of whether the doctor exhibits their proficiency accreditation qualification or not. How would they go on to properly quantify quantum (general and special damages), prove their loss, feel confident enough to prepare witness evidence and cross examine a defendant and/or their witnesses at Trial, let alone prepare a closing speech at the conclusion. Aside from these obvious, and very serious aspects of one’s claim, which clearly need to be presented properly and correctly, the la person will have to become familiar with the Civil Procedure Rules 1998 and the numerous amendments made to the same to date and to become versed in the laws of evidence on order to be able to carry out appropriate and acceptable advocacy in the first instance.
What an utter nonsense. The very thought of such proceedings being conducted in this way would have any sensible member of the Department for Justice or indeed, other specialist quango reject the very suggestion immediately ‘out of hand’. But we are not obviously dealing with sense and/or sensibility here are we, so who knows what will happen?
Philip Holt, Principal