The MedCo portal system of commissioning medical reports needs to be transparent and uncomplicated, and eliminate any incentives that encourage those acting for claimants to ‘game’ the process, leading defendant firm Kennedys has told the government.
As part of this, the Ministry of Justice needs to ensure there is robust auditing of medical reporting organisations (MROs) in tandem with openly available management information of which law firms are instructing which experts, it said.
In its response to the Ministry of Justice’s call for evidence on the operation of MedCo, Kennedys said: “Unfortunately, it may always be difficult to prevent a minority of organisations or individuals from developing unhealthy practices around what they see as an opportunity to exploit a situation and generate revenue.
“This has been proven again and again in the context of whiplash claims. The low-value, high-volume nature of these claims has attracted bad behaviours – hence the ongoing need for robust and flexible regulation and policing.”
The response predicted that the market will continue to adapt to the introduction of additional safeguards, not least because of the adoption of alternative business structures that can be used to cloud the nature of relationships between different organisations in the supply chain.
It added: “Different payment levels depending on the size of MRO and nature of medical expert also risk over-complicating the process and creating incentives that can ultimately affect the quality of report.”
Niall Edwards, partner and head of Kennedys’ motor practice, said: “Until we have proper audit procedures in place and good management information, the danger is that unhealthy behaviours will go unaddressed. It is vital to consider MedCo’s operation against a background of an ongoing desire by claimant firms to maximise the reward for agencies linked to the claims process.
“There is a growing tendency to plead psychological damage in the claim notification form with an indication that agents will be appointed to assess and provide treatment in the absence of a seven-day response. In practice, treatment is often underway – effectively ambushing the defendant and denying an opportunity to respond in a meaningful or fair way and, at the same time, generating an additional level of costs.
“Like any system, the more complicated it is, the greater the risk that ways will be found to undermine its objectives and create undesirable effects. MedCo needs to be kept simple and have a mirrored auditing procedure in place.”
Kennedys also called for a requirement that MROs, when renewing their MedCo registration, should provide information about the number of instructions received from particular firms; law firms should have to keep similar records of who they have instructed.
It recommended reducing claimants’ choice of MRO from seven to three: “The smaller the number of MROs, the easier it is to track the activity between them and claimant firms.”
Similarly, accredited experts should be registered members of no more than one tier 1 MRO and one tier 2 MRO, the firm said.