On the subject of evidence:
- ‘We broadly support the Government’s proposals on improving medical reports but would like to go further and require whiplash claimants to provide more information in support of their claim, such as proof that they saw a medical practitioner shortly after their accident. In addition, we recommend that the Government bring forward recommendations to reduce the time period during which whiplash claims can be made.’
- ‘In our view, the bar to receiving compensation in whiplash cases should be raised.’
- ‘ There should be a presumption against accepting claims where such information is not provided.’
- ‘We support the proposal that there should be an accreditation scheme for medical practitioners (who need not all be doctors) who provide medical reports in relation to whiplash claims. We also agree that these reports should be available equally to all parties. However, it is essential that the practitioners instructed to prepare such reports are provided with information about the accident and the claimant’s medical records. Reports prepared without this information are likely to be of very limited value.’
- ‘In our view, a random audit of at least a proportion of medical reports prepared each year is essential.’
- ‘We recommend that the Government explain the rationale for the three-year limitation period and bring forward recommendations for reducing it.’
The big stick?
- ‘If the number of whiplash claims does not fall significantly once these changes are implemented there would in our view be a strong case to consider primary legislation to require objective evidence of a whiplash injury, or of the injury having a significant effect on the claimant’s life, before compensation was paid.’
- ‘Insurers must immediately get their house in order and end practices which encourage fraud and exaggeration. If not, the Government should take steps to protect motorists.’
The medico-legal issues have not been thought through. For instance,
- Reducing the Limitation period to say 1 year would in some cases cause a claim to be made before any firm advice as to prognosis could be made. Changes in Limitation make sense if longer prognoses are accurately assigned, but the report makes no mention of this. There is a perfectly good way to do this. Not mentioned.
- Going to see a medical care provider within say 72 hours of an index event in no way confirms that an injury has occurred. Such visits are made for all kinds of subjective reasons. If there was some way to ensure that injury was either present or absent within 72 hours and that this decision was recorded at that visit, then the insistence on such a visit would make sense. But as things now stand, the medic just writes down what the visitor tells them and applies some inappropriate tests. Treatment by a physiotherapist likewise provides no real test of injury, and neither does taking time off work. Some clearer thinking is needed here.
- The bar can be raised simply by restoring common law standards in place of medical ones. Not mentioned.
- Accreditation of medical practitioners and audit make no sense at all unless these practitioners apply common law standards to their work. True, some out and out liars would be weeded out but the main problem is that the wrong standards are being applied. A fraud of a very different kind.
- Objective evidence of injury, were it a requirement, would eliminate the vast majority of claims, even the genuine ones. There is no scientifically objective test. If the committee meant legally objective, then this can be done right now. They didn’t say which form of objectivity they were referring to.
http://www.publications.parliament.uk/pa/cm201314/cmselect/cmtran/117/117vw42.htm provides the basis for the above commentary.
The most encouraging remark in the report is the one about ending practices which encourage fraud and exaggeration. Why they singled out insurers for this responsibility is unclear, except that it is the insurer who passes the bill on to the innocent motorist, but if they are in favour of giving insurers a license to tackle all the causes of fraud and exaggeration in the system then good. One suggestion is that insurers refuse to pay for medical reports which don’t apply common law standards.