NOWHERE is the dynamic interaction between insurance, law and medicine thrown into sharper focus than in the context of personal injury litigation. Learned as he or she may be in matters of Law, the reality is that most adjudicators are lay people in medical matters, entirely reliant on medical professionals for guidance in this regard. Given the critical importance of medical experts to the carriage of justice in personal injury matters, such experts are duty bound to present to the Court an honest, complete, balanced, mainstream opinion on the medical issues relating to the matter at hand without any regard for the effect such opinion may have on the interest of either the claimant or the defendant. The importance of complete and honest expert witness testimony derives from the judicial significance attached to such testimony in determining the extent to which an injured party is deserving of compensation, whether it be in a matter of a victim of a road traffic accident, or an industrial mishap or a matter of medical malpractice resulting in injury to an individual.

No one would or should doubt the moral correctness of proportionately compensating a genuinely injured individual or an accident victim who, in an extreme case, should perhaps be entitled to be considered for an interim award of damages before his legal case is completed, especially should he or she be in need of urgent medical or surgical treatment which may prevent deterioration in the medical condition. However, as Jamaica’s insurance companies are acutely aware, the reality is that this principle, taken together with the contingency fee system employed by many personal injury attorneys provides the perfect opportunity for fraudsters to extract enormous sums of money from the insurers by way of abusive claims for minor injuries which are markedly embellished or simply did not occur. This problem is not unique to Jamaica. In some parts of the USA abusive insurance claims have reached record levels and have come to be known as “cash for crash schemes” in which car crashes are deliberately orchestrated and claimants who may or may not have been inside the vehicle submit insurance claims for personal injury. The Insurance Research Council in the US estimates that 21 to 36 percent of automobile insurance claims submitted had elements of fraud. The UK reports similar experiences. The sums of money involved in some countries are so enormous that the racket has attracted the attention of organised crime resulting in rings of fraudsters consisting of corrupt doctors and lawyers at the top, middle men who arranged fake accidents, and the small fish at the bottom participating in the fake accidents for a small fee. The doctors make false diagnoses, sometimes carrying out expensive unnecessary treatments which support the fraudulent claims filed by their legal counterparts. Not surprisingly concussion, soft tissue injuries to the neck (the whiplash) and back (the lumbar strain) sometimes incorporating a pre-existing condition feature prominently since these are among the easiest injuries to fake and the most difficult to disprove. As recently as 2012 this phenomenon reared its head in New York where the Associated Press reported on the busting by the FBI of “a cadre of corrupt doctors and scam artists who sought to cheat auto insurance companies out of $279 million dollars in bogus claims; said the Attorney General “The fraud’s tentacles reached simultaneously into the medical system, the legal system and the Insurance system”.

On the other side of this phenomenon is the broad perception by some that their honest claims are not fairly treated by a monolithic Insurance Industry, especially in health matters, e.g. the online encyclopedia Wikipedia actually states in relation to the US health Insurance industry…. “Perhaps the greatest total dollar amount of fraud is committed by the health insurance companies themselves. There are numerous studies and articles detailing examples of insurance companies intentionally not paying claims and deleting them from their systems….” (NY Times, Joseph P Fried, 2000-08-01).

Effective counter-measures to this problem must involve all three affected systems. The Insurance industry already uses a variety of markers to identify or red flag suspect claims for closer scrutiny by their SIU’s (Special Investigation Units) and some have attempted to use statistical methods to look for inconsistencies. Insurance companies must continue to invest in the development and deployment of underwriting and claims management technology with a view to improving their analytical and detection capabilities. Data points of relevance include the timing and nature of legal action which can be helpful in assessing the bona fides of a claim for personal injury. Scenarios warranting robust investigation include claims where an attorney is consulted by the claimant before any medical treatment is administered; where the mechanics of the accident fail to correspond with the injuries, and where there is a historical pattern of repeated claims submitted by the same injured party.

The medical profession, for its part, must emphasise and reinforce the duty of its members to support the legal system in seeking out the truth not for the benefit of plaintiff or defendant but for the benefit of the Court in support of the Court’s quest for fairness. To this end the reliable, properly trained medical expert will leave no stone unturned to unearth past medical history, will ask numerous penetrating questions of the plaintiff, seeking to create as comprehensive as possible a profile of the events surrounding the “accident”, will diligently be on the alert for signs that the individual may be malingering or may have been coached, will seek to correlate the incident with the injuries, will secure the results of all available special investigations, and then, having completed this exercise, will take a conscious algorithmic approach to integrating all this information against a backdrop of his own experience and the mainstream medical literature on the subject, ultimately arriving at his best medical judgement. This approach, although not foolproof, is the one most likely to identify discrepancies and red flag potential fraudsters to a vigilant medical professional. The medical expert must recognise that the Court has a distinct right to expect and to receive “the medical truth, the whole medical truth and nothing but the medical truth”.

Accomplished and highly-credentialised medical professionals do not seek out involvement in medico-legal matters but are approached by one party or the other to provide a medical opinion for the Court in their matter, and the opinion rendered is (or should be) the same irrespective of requests it, be it plaintiff or defendant. Contention may arise in regard to the final assessment of disability. For the plaintiff it may appear to be too low and for the defendant too high. All too often there is a tendency to regard “impairment” and “disability” as being synonymous, which they are not. Whereas the impairment is a number expressed as a percentage representing the objective functional loss resulting from an injury, the disability is the impact on the individual’s life resulting from that impairment. For example, an individual with mild unilateral hearing impairment which is not resulting in any compromise of his ability to carry out his ordinary activities of daily living may well have a percentage disability rating expressed in single digits, whereas the same disability occurring in a professional sound engineer in a radio or television station would be very much higher. It is always easier to deal with a number which represents a permanent partial disability (PPD) than with a shade of an opinion on the impact of that disability on someone’s life. This will continue to challenge the legal fraternity for eons to come.

Senior Consultant Neurosurgeon Dr Randolph E Cheeks Snr graduated in the UK in Medicine and was trained there in Neurological surgery. He has served for eight years as President of the Caribbean Association of Neurological Surgeons which encompasses the Anglophone and Hispanic territories in the region and is currently the Senior International Delegate for the Caribbean Association of Neurological Surgeons to the World Federation of Neurosurgical Societies.