horwich farrelly

Keeping it in the family

October, 23, 2019

The recent case of Dr Bux highlights an area of growing concern, at a time when there is increasing reliance on medical reports and rehabilitation services provided by a relatively small number of organisations.

Dr Bux was struck off earlier this month, when it was found that he had provided a number of medical reports, as an expert witness, which were false and based on inadequate objective assessment of the patient/claimants. Of equal concern to the Medical Practitioners’ Tribunal, was that Dr Bux’s wife was a director of the firm of solicitors which had instructed him in these cases. The Tribunal concluded that Dr Bux’s actions had been financially motivated and were misleading and dishonest. Nor had he declared his wife’s interest in his instructing solicitor’s firm.

The concern for the future is monitoring relationships between firms of solicitors and/or claims management companies (CMCs), medical reporting organisations (MROs) and providers of rehabilitation services (PRSs). The only safeguards to prevent such conflicts of interest are held within diverse sets of rules. The Dr Bux case begs the question whether those rules are sufficiently robust and adequately policed.

Part 35 Civil Procedure Rules (CPR) is relatively weak. It only specifies that an expert’s overriding duty is to the court and overrides any obligation to the person from whom (they) have received instructions or by whom they are paid. The Solicitors’ Conduct Rules require solicitors to act with honesty and integrity and in their clients’ best interests but they do not touch directly on issues of non-client conflict such as this.

The Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (RTA PAP), is part of the CPR and applies to a very high proportion of accident claims. It prohibits a medical expert from providing medical treatment; from being associated with anyone who has provided treatment; and from proposing or recommending treatment that they or an associate then provide. The definition of ‘associate’ clearly anticipates a medical relationship and goes nowhere near excluding a financial relationship with an instructing solicitor or CMC.

The RTA PAP requires medical reports to be obtained via a single source: MedCo. The user (the claimant’s solicitor) is offered a choice of selecting randomly offered medical experts from two high volume MROs, 10 regional MROs or seven individual medical experts. The Medco user rules do not prohibit firms of solicitors from having a financial interest in a MRO. Such an interest must be declared to Medco which then filters requests for medical experts from the solicitors to ensure that they cannot instruct an MRO with which they have a financial interest.

There are three other PAPs relating to personal injury claims but none of those involve Medco and claimants are free to instruct any medical expert of their choice. This frequently sees both claimants and defendants instructing the same, small group of experts.

There are similar problems with rehabilitation. All of the personal injury PAPs cross-refer to the 2015 Rehabilitation Code, although only suggest that it should be “considered”. That prohibits any relationship between the person or organisation preparing the initial assessment of the claimant and the provider of any medico-legal report. If rehabilitation is to take place, there is nothing to prevent solicitors having a financial interest in a PRS but that interest must be declared if the PRS is nominated by the claimant. If the defendant objects to the nomination, the claimant is not prevented from using that PRS, although the defendant may refuse to make voluntary interim payments to fund the rehabilitation.

Where a solicitor instructs a ‘tame’ expert, knowing that s/he will write favourable reports, both professionals will be acting dishonestly and in breach of the general principles of behaviour required by their respective professional bodies. This, however, applies to a small minority.

Of greater concern are the situations where claimant solicitors and/or CMCs have financial interests in MROs and PRSs. This is big business with some MROs charging not only for the provision of the medical report but also substantial administration fees for collating medical records and processing the report. PRSs often provide costly rehabilitation, such as physiotherapy, knowing that a defendant insurer will be paying the bill, with the defendant having limited ability to verify the charges raised.

Suspicions are aroused when it becomes apparent that outside of the RTA PAP, the same solicitors are constantly using the same MRO and the same PRS. Closer investigation then reveals direct financial links between these. Sometimes, attempts are made to obscure the connections by using a series of (often shell) companies.

There are no doubt many solicitors with openly declared interests in MROs and PRSs who act with total honesty and integrity. However, it appears that the only way to discourage the minority who seek to profit from abusing the system is to introduce much stricter safeguards.

The first would be an absolute ban, in all cases, on any claimant solicitor instructing an MRO and/or PRS with which s/he had any financial connection. The second would be a requirement that any solicitor instructing a medical expert with whom there was any close personal connection should ‘declare an interest’ with the medical expert having a corresponding duty of disclosure. This would not prevent Dr Bux’s wife’s firm from instructing Dr Bux, but would make clear that such a relationship existed, leaving it open for the defendant to raise objections.

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