Government issues response on future of small claims medical reporting in RTA related claims
The Ministry of Justice (MoJ) has issued its response to the consultation into "Future Provision of Medical Reports in Road Traffic Accident related personal injury claims".
In a welcome clarification, the Government will extend the MedCo system to cover all injury claims related to road traffic accidents under £5,000, with the existing fixed recoverable costs regime applying to those initial reports for non-soft tissue injury too.
The outcome provides continued encouragement that the intended implementation date of April 2020 for the whiplash reforms, including the new portal system, remains in place.
The consultation relates to the whiplash reform programme introduced by the Civil Liability Act and expected secondary legislation increasing the small claims track limit for road traffic accidents to £5,000. After seeking the opinions of medical experts, medical reporting organisations (MROs), legal representatives and insurers, the Government has concluded that:
- The existing MedCo system for obtaining reports for soft-tissue injury claims will be extended to cover initial medical reports for all RTA related personal injury claims under £5,000
- Initial medical reports for non-soft tissue personal injury claims can be provided by General Practitioners and Accident and Emergency (A&E) consultants only
- The existing fixed recoverable costs regime for soft-tissue injury medical reports will apply to all initial RTA related non-soft tissue injury medical reports for claims under £5,000
- To protect unrepresented claimants, new qualifying criteria and standard service level agreements will be developed for medical reporting organisations (MROs) and experts
Expansion of MedCo
The Government has elected to widen MedCo's remit so that all initial medical reports for RTA-related PI claims in the small claims track are dealt with using that system. This extension received 74% support amongst those who responded to the proposal.
The extension of MedCo was identified as providing consistency with the existing system and also more user-friendly then alternatives, given expected increases in the number of unrepresented claimants.
Claimant representatives suggested that additional funding should be made available to ensure that medical reports for unrepresented claimants are always free of charge. As we have noted previously, the position of possible fee remissions remains unclear, and has not been addressed in greater detail in the response.
Reports for non-tissue injury claims under £5,000
It has been clarified that medical reports obtained for non-tissue injury claims (whether or not accompanied by a soft tissue injury) will be provided by GPs and A&E consultants only.
Responses in the consultation noted "their experience and training made them more suitable to provide these reports."
Broadening the types of medical experts registered on MedCo
Presently, doctors, consultants and surgeons registered with the General Medical Council and physiotherapists registered with the Health and Care Professions Council can be accredited by MedCo to provide medical reports for soft tissue injury claims.
The consultation sought clarification on whether other types of specialists, such as dentists, ear, nose and throat specialists and psychologists should be accredited by MedCo to provide medical reports for road traffic injuries, in light of the proposed inclusion of non-tissue injuries.
In response, the Government has made clear that it will not be adding additional specialists to the MedCo process for the purposes of providing initial medical reports. The identification of the need for such a report was likely to be "difficult for unrepresented claimants", and that the recruitment and accreditation of such specialists in any event would be time-consuming, and not cost-effective.
However, the Government did note that it "may be worthwhile adding such specialists to MedCo for the purposes of sourcing additional recommended reports." This will be considered with the MedCo board and stakeholders at a later date.
A significant number of respondents (87%) also made clear their objection to an extension of the types of experts allowed to provide medical reports for soft tissues injury claims, to include chiropractors and osteopaths. Common objections noted their classification as complementary therapy providers, and that their experience was not at "sufficient a level to support their addition" nor would "the market support their inclusion"
Fixed costs medical reports
The Government has decided it is appropriate for the fixed recoverable costs regime to be extended to RTA related non-soft tissue injury claims within the increased small claims track.
The current level of £180 plus VAT will be applied, providing "certainty to both claimants and to those providing reports".
This conclusion was reached despite objections from insurers and defendant representatives that the amount should be lowered, particularly for those claims which will fall within the whiplash tariff; objections from claimant representatives also argued that non-soft tissue injuries were more complex, and thus the cost should be higher.
This fee cap will be reviewed following the full implementation of the whiplash reform programme in April 2020.
In addition, having not agreed that further specialists can complete initial medical reports, the Government determined that there should be no extension of the fixed recoverable costs regime beyond those currently set for additional reports provided by Orthopaedic Surgeons and A&E Consultants.
Once again, this situation will be kept under review when the reforms have been fully introduced.
Options for obtaining medical reports for unrepresented claimants
The initial consultation proposed retaining "the current MedCo model of providing a randomised list of medical report providers, but with proportionate and necessary changes to meet the specific requirements of unrepresented claimants".
The Government has confirmed that this retention may require changes to the qualifying criteria for MedCo to enable the proper service of the needs of unrepresented claimants. The details will be published prior to April 2020 to allow stakeholders to determine whether or not they wish to opt-in to the service for unrepresented claimants.
The responses from MROs and directly instructed experts (DMEs) suggest that there will be "sufficient operational capacity to support the assumed volume of unrepresented claimants". There was also heavy support for the introduction of standardised service level agreements for MROs and DMEs dealing with unrepresented claimants to provide additional consumer protection.