Wednesday, 07 December 2016

Doctor ordered to pay legal costs

A doctor who it is claimed exaggerated medical evidence in a large number of road traffic accident (RTA) whiplash cases is to pay an estimated costs bill of £100,000 to insurer, Ageas and its solicitors, BLM.

In a legal first, Dr Grace Kerali, a GP medico-legal expert, is to pay the costs, starting with an initial £40,000 to Ageas. At a trial held at Liverpool County Court on 3 November, Dr Kerali declined the opportunity to defend her own conclusions, competency and methodology in reaching much lengthier injury prognosis periods than her peers within the industry. Ageas is aware of other courts already striking out her evidence as a result of this test case.

The UK has earned a reputation as the 'whiplash capital of Europe', with personal injury claims helping to drive up motor premiums by 10% over the last year, according to the Association of British Insurers (ABI). The government unveiled plans last month to dramatically cut the amount that crash victims can claim for whiplash injuries as part of a welcome reform plans.

'The Court order for a medical legal expert to pay costs sets a precedent and we hope it will discourage hyped up claims,' said Andy Watson, chief executive of Ageas. 'Disrupting Dr Kerali's medico-legal work provides definite financial benefit to us, customers, and the wider insurance industry, especially given the fact that, on her own evidence, she was preparing up to 2,000 medical reports per year.'

Ageas's anti-hype victory came about when its lawyers, BLM, used claimants Marc and Nasheah Topham as a test case for Dr Kerali's medical reporting. The Tophams had filed a claim after being in a RTA on 5 February 2014 but, at trial, they abandoned Dr Kerali's reports and requested a different expert assessment. Dr Kerali's stated opinion after examining both claimants six weeks after the accident was that both the Tophams' whiplash injuries would recover by 14-16 months post accident.

In the course of the claim BLM and Ageas submitted evidence that Dr Kerali's reports were either misleading or inaccurate. A review of more than 1,000 cases involving soft-tissue whiplash injuries was conducted by Ageas in the reports by Dr. Kerali, 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. In the 126 cases involving Dr Kerali no adult claimant received a prognosis of less than 11 months unless they had already recovered by the date of examination. It followed that a claimant's average damages in cases involving Dr Kerali was significantly higher than cases involving her peers.

'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,' said Ruth Graham, partner at insurance and risk law specialist, BLM. 'When the effects of whiplash are exaggerated, it means the insurance industry can't accurately price risk and the price of premiums goes up for everyone.'

Injuries reported by Dr Kerali in each case were almost always multi-sited injuries (i.e. to the neck, back and shoulders) although Ageas and BLM argued that typical soft tissue claims in RTAs often tended to be single-site injuries.

In further support of the case, a review of Dr Kerali's reports was undertaken by consultant trauma surgeon, Mr Stuart Matthews. Mr Matthews' opinion was that Dr. Kerali's prognoses were extreme and substantially outside the reasonable range.

Mr Matthews also found Dr Kerali had made no attempt to consider underlying medical conditions that predated the accidents and made no neurological examinations usually considered mandatory for alleged spinal injuries.

Dr Kerali also recommended physiotherapy in almost every case in which the claimant hadn't recovered. Mr Matthews commented that this was 'not in line with the opinions of her peers'.

Despite initially defending her reporting and opinions, on the third day of trial Dr Kerali elected to defend her position no further and agreed to pay Ageas's costs. The Judge indicated that, so far as he was concerned, this was a unique case and the first in which an expert witness had been ordered, or agreed, to pay the costs of an action.

Andy Watson concluded, '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.'

Mark Hanson, associate solicitor and file handler from BLM, commented that 'Ageas should be commended for taking a stance in this claim and for sending a message that motor insurers and the industry generally will not accept what they deem to be exaggerated prognosis periods from medico-legal experts, especially in instances when the experts are examining a Claimant a matter of weeks after an accident, as was often the case with Dr Kerali. Doctors, who are experts for the Court, are called upon in whiplash claims because of their credibility, knowledge and expertise and this case illustrates there can be serious consequences for medico-legal experts who do not give fair and reasoned opinions and prognoses'.