20 May 2015Print This Post

Exclusive: Leading medical agency bids for judicial review of “anti-competitive” MedCo

Medical reports: argument over choice of MRO

Medical reports: argument over choice of MRO

One of the country’s largest medical reporting organisations (MROs), which considers itself prejudiced by the new MedCo portal, is battling to take the government to court in an effort to change the way it operates, Litigation Futures can reveal.

Although an application for judicial review by Speed Medical against the Ministry of Justice (MoJ) was rejected last week by the High Court, the company yesterday issued a notice to renew its application at an oral hearing.

Since 6 April, a claimant seeking to bring a low-value soft tissue injury claim following a road traffic accident is required to instruct a medical expert from a shortlist generated randomly by MedCo’s IT portal.

This list is made up of either one high-volume national MRO (a tier 1 provider) and six other (tier 2) providers, or seven individual medical experts.

Speed is one of the tier 1 providers and in a claim lodged in late March argued primarily that only including one tier 1 provider in the list was anti-competitive.

However, Mr Justice Leggatt last week rejected the application, saying that as MedCo was not an MRO itself and the decision on the make-up of search results was made by the MoJ, it could not be reasonably argued that MedCo was abusing a dominant position.

He also found no evidence of state aid for smaller MROs and, on the irrationality of the decision, concluded: “It is evident that the policy aim is to maintain consumer choice without allowing the exercise of such choice to compromise the independence of expert reports.

“No doubt there is scope for disagreement about whether the number and mix of MROs presented on a search have been set in the optimum way to achieve those goals, but the defendant has given coherent reasons for its decision on those matters and [it] is impossible to say that the decision is irrational.”

In a statement to Litigation Futures, Speed Medical said: “The defendant [the MoJ] failed to respond to our letter before action within the extended time period they requested (by 31 March 2015). Their response letter arrived on 9 April 2015, a week after our application for judicial review had been submitted to the Administrative Court.

“The defendant then submitted to the court immediately before the May bank holiday weekend summary grounds of defence in which they raised further points not set out in their response letter. As a result of not being given the usual opportunity to consider and respond to the defendant’s position, we submitted reply submissions to the court on Wednesday 13 May 2015.

“On Thursday 14 May 2015, we received a letter notifying us that the court had already considered the matter and made an order on the papers on Monday 11 May 2015. Our correspondence had ‘crossed in the post’, so to speak.

“We have submitted to the court a notice to renew our application at an oral hearing, and it is our view that the court will be persuaded to grant our application once it has considered all of the papers.”

Speed said it was not taking on the MoJ “selfishly”. It said: “We’re doing it on behalf of all the long-standing professional MROs and solicitors who want to provide an excellent service to the consumer.”

An MoJ spokesman said: “We are committed to seeing the cost of motor insurance come down. Motorists should not continue to bear the cost of a system that has been open to abuse.

“Our reforms will create an improved system for medical evidence so that genuine whiplash claims can be settled but those without merit are stopped. We are pleased that the court refused the original application on all grounds and we will defend any further legal challenge.”

Meanwhile, Speed has also moved to tackle the problem in another way by creating 10 tier 2 agencies that went live this week on MedCo.

A separate judicial review over alleged inadequate consultation before setting up MedCo is also underway.

By Neil Rose

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