Low value Injury claims – Cost layering continues

Exaggeration in low value injury claims is not a new issue for fraud practitioners but there remains a question as to whether a minority of medical experts play a role in the layering of claim values, and whether experts can do more within the bounds of their Part 35 duty to the court to ensure that exaggerated claims for injury are properly challenged.

We are approaching the five-year anniversary of the implementation of the Civil Liability Act 2018 which provided fixed tariffs for neck, back and shoulder injuries with a prognosis of up to two years. Where genuine injuries are pursued and supported by compelling medical evidence, the reforms have provided a platform for insurers to settle low value claims efficiently and at reduced cost.

It is a concern, however, that we have seen an increase in reporting of non-tariff injuries, for example to the knee, wrist and hip with some medical experts failing to address how those injuries were caused in the accident. Additionally, there has been a spike in higher value tinnitus and psychiatric injuries arising from modest road traffic incidents. Defence strategies incorporating a thorough review of medical records and challenging the robustness of desktop/proforma medico legal reports are essential.  

What should we expect from medico legal experts?

The starting point is that an expert’s duty is set out in CPR 35.3:

1. It is the duty of experts to help the court on matters within their expertise
2. This overrides any obligation to the person from whom experts have received instructions or by whom they are paid

Part 2.3 of the Practice Direction to Part 35 confirms:

‘Experts should consider all material facts including those which might detract from their opinion’. 

In the case of Muyepa v Ministry of Defence [2022] Mr Justice Cotter, when criticising the claimant’s care expert, provided guidance of what is required from experts and commented that an expert’s analysis “must be objective and non-partisan if a just outcome is to be achieved in the litigation’” 

It is clear from this that an expert must remain impartial, independent and must address all available evidence. This includes stating any conflicting views and if there is a range of opinion on any particular issue. Experts must be prepared to update opinions when new evidence emerges. One could argue this is even more important in low value cases where courts are less likely to be provided with a range of opinion and matters decided on the written evidence of one expert alone. 

High quality experts have no issue with reasonable Part 35 challenges, clarifying their opinions and responding to new evidence. In instances where the above guidance is not heeded, insurers and their legal representatives must have robust strategies in place to ensure that uncredible expert opinions are properly challenged and flagged to the court.  

Claims handlers are advised to:

1. Pursuant to CPR 35.6 (1) and (2) ensure that Part 35 questions posed are proportionate and focused on the clarification of an expert’s report.
2. Have robust strategies in place where Part 35 responses are selective or contain an element of bias.
3. Collate similar fact evidence of any behaviour which contradicts the guidance provided by Mr Justice Cotter.

Data analytics and profiling tools are now able to identify specific medical expert behaviours across multiple claims. We often see the first-tier medical expert avoiding providing a definitive diagnosis/prognosis thereby necessitating the instruction of a second-tier medical expert and, commonly, a refusal to provide a full diagnosis/prognosis without further costly medical investigations. Insurers should continue to attach detailed scrutiny to conveyor belt type claims to ensure that poor medical expert behaviour is properly challenged. When faced with such claims, best outcomes are achieved via early detection which allows for the ringfencing of claims and a coordinated strategic litigation defence strategy. 

Identifying such patterns across claims data and intelligence sharing is key. Panel Law firms can support insurers and claims teams with robust and focused causation and Part 35 strategies and, where necessary, ensuring the attendance of experts at trial for further scrutiny in addition to the detection of those claims driven by professional enablers.