Medical agency fees the subject of more litigation - surely not!
I had hoped that issues over medical agency fees would disappear following the introduction of fixed fees and fixed costs medical reports now being enshrined within the rules.
Unfortunately not, those enterprising claimant lawyers who own their own medical agencies have now come up with another method of increasing profitability.
Instead of obtaining instructions from the claimant as to the injuries complained of to determine the type of expert to instruct, they delegate it to their wholly owned medical agency to carry out a triage assessment.
The medical agency carries out the triage and instructs the appropriate expert to examine and report. The medical agency then submits the following fees to be recovered by the solicitor as disbursements:
| Expert report fee | £ fixed under the rules |
|---|---|
| Triage assessment fee | £90.00 |
| Administration fee for obtaining the records | £36.00 |
| Fee for copying the triage assessment note | £60.00 |
Not only does this reduce the amount of work the solicitor has to do for the fixed fee thereby increasing profitably but it increases the income that can be derived from the litigation in claiming it as disbursements.
Just what has the solicitor and their own medical agency done for this additional £186.00? Delegated work that the solicitor should have done in order to create an assessment fee?
The agency has charged for obtaining records that are already in their possession and compounded this by charging a copying fee of £60 for what is a couple of pages of assessment notes at most.
What is all the more galling is that these fees are claimed on behalf of the claimant and in the claimant’s own name and yet are of no benefit to the claimant whatsoever.
We acted for the defendant and successfully opposed these fees in Mulholland v Hughes, a case involving Winns solicitors and their medical agency OnMedical Ltd. In a strongly worded judgment, District Judge Kramer said,
“I cannot really see how OnMedical Ltd could both generate the triage notes and then charge for obtaining it from themselves; this is not obtaining records from some third party.”
The court disallowed the copying charges holding that they did not fall within the ambit of disbursements that were recoverable from the defendant. The court disallowed the triage fee finding that it had arisen because Winns Solicitors had deliberately introduced a step into the process that was not needed in order to be able to charge for it as a disbursement. District Judge Kramer said,
“This is a disbursement that has arisen because the solicitor has decided that part of the decision making, the advice process which is for the solicitor to give, will be taken by somebody else. They cannot take both the fixed costs and alleviate themselves or abrogate responsibility for taking that decision as to whether or not somebody should be referred to somebody else.”
Compensators cannot, should not and will not accept this inequitable state of affairs and we will continue to pursue these issues before the courts. This is fundamentally about ensuring that the party who ends up paying these fees only pays the fixed fees for both the claim and the medical agency fee.
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