A 10% cut to fixed fees for medical reports and an end to law firms owning the agencies that commission them have been put out for consultation in the latest stage of the government’s plans to crack down on whiplash claims.
The aim is for these changes to be approved by the Civil Procedure Rule Committee in the summer ahead of them coming into force on 6 October, according to a letter sent last week to stakeholders by Lord Faulks, the justice minister who has taken over responsibility for civil justice from Shailesh Vara.
As part of the work, the cross-industry working groups advising the government have also come up with a definition of a whiplash claim as “a claim brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury”. This is to be included in the RTA protocol and addresses the trend of claims for psychological injury.
Under the voluntary Association of Medical Reporting Organisations agreement currently in force, a GP report costs £200; under the new proposals, this would fall to £180. The cost of an orthopaedic surgeon’s report would be cut £5 to £420. An addendum report from a GP on medical records would stay at £50. The proposed schedule of fees make no mention of the cost of an A&E report, as the AMRO agreement does.
The draft schedule puts the cost of obtaining medical records at no more than £30 plus the direct cost from the holder of the records, and limited to £80 in total. It also introduces a £180 fee for a report from a member of the Chartered Society of Physiotherapy, as well as an £80 limit on the cost of asking written questions of the expert under rule 35.6.
The paper sent out to stakeholders said the government is “committed to ensuring that there should not be a financial link between the party commissioning the medical report and any intermediary organisation through which the report is provided (or indeed with the medical examiner), other than for payment of the examination/report”.
It is therefore proposing, as a preliminary measure, to prohibit either party having a financial interest in an intermediary through which a medical report is obtained.
“However, we want to explore the issue of independence further to ensure that reciprocal arrangements cannot be established between different commissioning firms in order to subvert this prohibition. We would be interested in views on how to achieve this.
“For example, would this prohibition be strengthened by requiring that claimant and defendant representatives may only commission a specified proportion of medical reports via any given intermediary? Or should, for example, representatives be required to commission reports on a rota basis from a variety of intermediaries?”
The government is also consulting on whether to give defendants the right to give the medical expert their version of events where there is a material difference between the parties’ accounts.
Further, to discourage claimant representatives from obtaining an initial report outside the fixed fee scheme, the government is considering allowing the defendant to make a pre-medical offer – even though in general ministers want to stop this practice and plan to exempt claimant lawyers from the part 36 costs sanctions that would otherwise apply.
It said: “Claimant representatives have argued that the sanction in these circumstances should be only that the cost of the report is not recoverable, but defendant representatives are concerned that that is not a sufficient deterrent and that, in addition, a pre-medical offer should be permitted in these exceptional circumstances.”