Legal Costs

How To Recover a Medical Expert Fee 

Whether you are seeking recovery of costs on a standard or fixed basis, every Solicitor will have experienced at one point or another a challenge on a medical expert fee or medical agency fee they have incurred in a case.  The very point of instructing a medical agency is to reduce the administrative burden of acquiring records and expert evidence.  However, Solicitors can often be left at the conclusion of a case with a choice to make: accept a reduced offer for medical fees and take a hit on their profit costs, or engage in what can be laborious litigation process debating the reasonableness of any expert/agency fee incurred.

The first option will inevitably lead to a cycle of diminishing offers and reduced profitability arising, so how do you ensure that your medical fees are fully recovered?  We provide some tips below on the main areas of contention, and how to recover your expert medical fees.

1. Liaise with your Medical Expert/Agency

Have you considered whether the medical expert or agency is over-charging?  There is significant competition in the medical expert fee market now such that the hourly rates charged by medical experts should not be so out-of-the-norm so as to be unreasonable.  The best pro-active action to take is to ensure that you maintain a database of preferred medical experts/agencies that you know provide cost-effective services.

2. How much is an Appropriate Uplift for the Medical Agency?

A medical expert fee will be subject to an uplift from an intermediary medical agency.  There is no right or wrong answer as to an appropriate uplift, but it will not be an uncommon approach of a paying party to ask for a split between the expert and agency fee, and to seek to apply a reduction to the latter element.  If an agency is obtaining medical records, the agency uplift should only amount to a few letters, but inevitably a complex report will require more significant input.

Rebecca Eve Kellett (a Protected Party by their Litigation Friend, Alison Dawn McMahon) v Wigan & District Community Transport (16 September 2015, County Court at Manchester) is an often cited matter by paying parties.  Therein, the medical agency sought a £500 + VAT uplift on the basic medical expert fees (neurologist) for the agency administrative input, but this was considered disproportionate and unreasonable given the claim settled for £4,100, and ultimately £160 plus VAT was allowed, and maintained as reasonable on appeal.  Interestingly, this is significantly higher than paying parties often offer, and is usually above and beyond what an agency has charged in any event.

3. Should a Medical Agency Charge VAT on the Full Medical Expert Fee?

Though it sometimes saves paying parties as little as £10, it is a common argument to reduce medical agency fees on the basis that the medical expert is not VAT registered.  By way of example, if a medical agency charged £600 + VAT of £120, totaling £720, the paying party may argue that if the medical expert who had charged £500 of the £600 base fee was not VAT registered, that £100 of the VAT should not be charged, thereby reducing the overall fee to £620.

Fortunately, the issue has finally been resolved in the recent matter of British Airways Plc v Prosser [2019] EWCA Civ 547 wherein it was surmised that if the medical agency has provided a service (and is not just an intermediary postal service), then VAT should be charged on the entire element of the base fee, and not just the medical agency administrative element.

4. Are you Required to Provide a Breakdown of the Medical Agency Fee?

Stringer v Copley (2002) is the go-to common law of the paying party, which determined that in order to properly assess a global medical agency fee, the receiving party must provide a breakdown between the medical expert fee and the medical agency administrative element.  For the simple reason that this is commercially privileged information, it is often not possible to obtain this information from a medical agency.

In addition, it should be remembered that Stringer v Copley (2002) is a somewhat aged authority, and there have been numerous instances, particularly in April 2013, for the CPR to be revised to provide for medical agencies to breakdown their fee in any invoice.  This has not happened, and Judges have often been willing to consider medical agency fees on a global basis in the absence of a breakdown.

Further, we are at a point in time now, that paying parties have accumulated a wealth of evidence of medical agency fees.  If they are therefore unwilling to provide any material evidence in support of their assertions to reduce a fee, then why?  Any argument should be supported with evidence, and if none is forthcoming, the paying parties’ Point should be disregarded for being opportunistic.

5. Is the Medical Expert Fee Damages or Costs?

It may sound an obvious question, but sometimes a medical expert fee may be claimed as part of costs which are actually treatment, and form part of damages.  To therefore claim as costs would be double recovery.  Equally, sometimes experts commission medical scans to be completed for the purposes of reporting.

The crux of the question is what was the purpose of the scan or other fee, and has it assisted in the formulating of an expert report?  Simply because a treatment cost, such as CBT sessions, have not been recovered as part of damages, does not make it form part of costs.  Whereas an ultrasound scan recommended by an expert for them to finalise their opinion is a reasonable legal cost to recover.

Summary

Irrespective of the argument or the context in which it is raised (indemnity, standard or fixed costs), feel free to pick our brains on any queries you might have.

The ARC Costs team are always happy to help, and the author can be contacted via email at thomas.higginbottom@arccosts.co.uk, or by telephone on 01204 397302.

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