A row has blown up over a county court case in which a doctor accused of exaggerating medical evidence agreed to pay the costs of the defendant insurer, which the judge said was “unique”.
Dr Grace Kerali is now threatening to sue Ageas for defamation over comments it made about her in a press release about the case.
Ageas’s press release came after Dr Kerali agreed to pay an estimated costs bill of £100,000 in what it described as a “legal first”, quoting the trial judge in saying that it was unique as this was the first time in which an expert witness had been ordered, or agreed, to pay the costs of an action.
According to Ageas’s solicitors, BLM, the case at Liverpool County Court last month saw the claimants first abandon Dr Kerali’s medical report and then the claim in its entirety. BLM had previously raised questions about the report – which said the couple would recover from whiplash injuries in 14-16 months – and she had voluntarily joined herself as an interested party to the action.
BLM then sought its costs from her, but shortly before entering the witness box, Dr Kerali instead agreed to pay the costs. An interim order for £40,000 was made.
In a press release, which was revised during yesterday, Ageas described this as the medic “[declining] the opportunity to defend her own conclusions, competency and methodology in reaching much lengthier injury prognosis periods than her peers in the industry”.
It added: “Ageas is aware of other courts already striking out her evidence as a result of this test case.” However, it has not provided any examples of this, despite a request from Litigation Futures.
Ageas chief executive Andy Watson said: “The court order for a medical legal expert to pay costs sets a precedent and we hope it will discourage hyped up claims. Disrupting Dr Kerali’s medico-legal work provides definite financial benefit to customers, especially given the fact that, on her own evidence, she was preparing up to 2,000 medical reports per year.”
An initial statement provided by Dr Kerali’s law firm, Campbell & Co in London, to The Times, said she had “decided on a commercial basis to simply bring matters to a close by agreeing to pay costs”.
It continued: “It is very unfair, which is why the other side are pushing the narrative, to utilise that commercial decision as a springboard to make untrue allegations about Dr Kerali being found guilty and/or suggesting there was any finding about her exaggerating anything.”
An additional press release was later issued that said Dr Kerali’s lawyers were “preparing a defamation suit to restore her reputation, after a PR manager at insurance company Ageas released a wholly inaccurate and professionally damaging statement about her to the press”.
This suggested that Dr Kerali was “found guilty of exaggerating medical evidence”. Her press release responded: “Dr Kerali has never been on trial to answer this or any other allegations about her work. She had not been the subject of any judicial criticism nor any other judicial finding.
“On the contrary her evidence and methodology was supported by a leading surgeon Professor Nee. Further, the word ‘guilty’ denotes criminal proceedings, whereas her expert witness work takes place in the context of civil cases, so another point of inaccuracy.
“‘Guilty’ is also a highly emotive and damaging word, as well as being wholly inaccurate, and is especially harmful to doctors, who live and work by their reputation.”
It said it was also misleading to say that Dr Kerali had been ordered to pay costs.
Mark Engelman of Hardwicke Chambers has been instructed by Sandra Campbell of Campbell & Co to act on the defamation claim. Ageas has not responded to a request for comment on this.
During the claim, BLM and Ageas submitted evidence that Dr Kerali’s reports were either misleading or inaccurate. They said a review of her reports in more than 1,000 cases involving soft-tissue whiplash injuries found that the average prognosis from recovery from whiplash injuries was 14 months, whereas that of hundreds of her peers during the same period was eight months.
An opinion commissioned from consultant trauma surgeon Stuart Matthews said Dr Kerali’s prognoses were extreme and substantially outside the reasonable range.
Ruth Graham, a partner at BLM, said: “The amounts being claimed in damages and treatment based on cases where Dr Kerali was the medico-legal expert were huge, in some cases easily tripling what we would expect to see.”
Mr Watson added: “We are working with BLM to look at medical evidence that Dr Kerali has supplied in 90 outstanding Ageas cases, as we can no longer rely on it. Others in the industry may also want to consider revisiting theirs too.”
In a briefing to clients, BLM said the decision “may make it easier and more likely for experts to be held accountable for inappropriate reports or practice”.
Specifically on Dr Kerali’s report, it advised that the case “does not mean that her reports are automatically defective, but it does mean they are open to challenge and claimants should be nervous of proceeding to trial based upon them”.
It said: “Defendants faced with claims based on reports from Dr Kerali tactically may want to suggest at the earliest opportunity to claimants that such claims will fail and that, if pursued, costs will be sought and enforced.”