Where Does All the Money Go? - Dr Mark Burgin
12/12/24. Dr Mark Burgin discusses how productivity in healthcare and legal practice has become stalled and why it costs more to give a worse service.
Experts are significant cost in legal cases and even if their work is not publicly criticised it can be difficult to see what the money has bought. The medical legal report in 2025 is largely of similar or worse quality than a similar report 20 years ago. I have written a book which challenges these issues by showing how disability medical reports can be used to improve productivity.
Lawyers still prefer to buy several specialist reports each looking at different aspects of the case rather than one report covering everything. This is wasteful and is an opportunity to make a real change. Although there has been talk about ‘backhanders’ from experts or agencies to lawyers there appears to be other reasons for excessive expert instructing.
Agencies have taken over many of the interactions between professionals. They are allowed to offer incentives that would be illegal for professionals. This gives them an unfair advantage and allows them to outcompete for work. They often rely upon using contractual arrangements to subvert the rules. They are also flexible and open to changes.
Case handlers and other management trained professionals in agencies are excellent at upselling the latest medical legal product. They can charge more because of their brand image, access to a broad range of professionals, reputation, flexibility in pricing and convenience. They approach innovative ideas with interest and engagement and are happy to drive change.
Expert fishing
Lawyers always talk about getting the right expert to do their case. When pressed they explain that what they are looking for is an expert who shares their view of the case. They want the expert to only look at the information that they feel will support their client and they would like the expert to argue the case strongly.
They seem unaware that they are looking for a ‘hired gun’. A lawyer might instruct 6 experts but choosing the ‘best’ might compromise the evidence that they would receive. All experts are biased and there are always cases that bring out the worst in any of us. Experts have raised this issue in surveys for years.
If a lawyer sees themselves as an agency than a professional service they focus on getting the best service to their client than following professional guidelines. They manage the overall cost envelope to creatively implement an optimal strategy. The idea that an expert should have a good fit with the case is much more difficult.
Agencies are becoming more adept at providing creative solutions to legal problems. They will provide the lawyers approach to a number of experts including some who have different insights. This can help the lawyers develop a better understanding of medicine and in turn lead to the expert chosen having a good fit with the case.
Expert Fees
Agencies typically charge 400% of the fee that they pay their expert. This additional money is to cover the failure of lawyers to pay for reports that disagree with their views. It also pays for the huge delays between provision of the report and the payment of the invoice. Experts however quickly become aware of the link between whether their opinions are unfavourable and the reluctance to make payments.
For those who have been brought to tears by this sad story of experts having to cut back on the numbers of skiing trips that they can send their children each year there is an upside. Experts who become popular with their agency find that they can make up for the diminutive fees by increasing the number of cases they take.
The agencies are rarely concerned about the decrease in standards that occurs as the expert becomes overloaded. The expert in turn realises that they can turn out a copy and paste report and earn the same money for a fraction of the effort. There are comments by judges of experts creating ‘industrial’ numbers of reports. Any productivity gains are swallowed up by increasing agency profits.
Those experts who can adapt to producing high numbers of reports by optimising their systems can reduce their costs. Identifying the minimal dataset necessary for the report and using assistants to collect and upload the data can reduce expert time. Some experts are able to produce a report in a quarter of the time of the standard expert.
Doing the right thing
There are many professional experts who try to produce high quality reports at ever lower prices. They become increasingly frustrated by the way that they are criticised for doing the right thing. They complain at meetings that agencies are reluctant to back them up when a lawyer (or case handler) makes an unwarranted criticism.
After multiple challenges the expert can feel bruised only to learn that they will not paid for the work. Few agencies have an independent system for assessing the quality of expert reports and most will have a contractual term that means that the expert is paid upon outcome.
Expert fishing finds experts with extreme views, reducing expert fees leads to poor quality reports. ‘Doing the right thing’ causes a unique phenomenon, the missing opinion. The expert does not want to lie but at the same time does not want to include anything that might upset the instructing party. Instead they leave a gap where the comment should go.
The advantage is that it gives a way for highly skilled experts to continue in the industry rather than have to leave. The reports are not difficult for an expert to read and see through the gaps and if the lawyer has not got another expert to help them they can ask further questions of the first expert.
Conclusions
There are three main reasons why the cost of medical legal reports is increasing and the productivity is falling. The role of agencies in this process is central as they are permitted to make contractual arrangements that would be illegal for experts and lawyers directly. They are also making large profits with some estimates that a third of all the money in the justice system is now being paid to agencies.
It has become straightforward to find experts with odd and unusual views has become straightforward. These experts can have relatively normal views in many areas but lose the plot when discussing their area. Having talked to hundreds of experts I do not think having odd views is unusual, most just keep quiet about them.
Expert fees have been increasing and falling at the same time. The agencies demand larger payments but do not link their expert fees with inflation. Experts in turn have no choice but to cut back on the time they allocate to a case, they are increasingly using ChatGPT to cut the time taken to get through their work. Many experts have been able to double their case numbers by using AI.
Those experts who have not been able to adapt to the world of agencies are struggling. Their reports are increasingly looking confused as they delete anything that a lawyer might object to. This leads to an odd phenomenon where reports have gaps where the reader must guess what the expert was thinking. Although these reports make sense to another expert they do not make sense to lawyers.
Call to action
All the stakeholders (judge, lawyers, experts and agencies) should meet to discuss the future of medical legal expert reporting. Innovations such as the disability report could allow an increase in the number of reports, the quality of evidence, reduce the use of AI and reduce overall costs. The alternative is that reports will become increasingly generated by AI, miss vital elements and put more financial pressure on the justice system.
Doctor Mark Burgin, BM BCh (oxon) MRCGP is a Disability Analyst and is on the General Practitioner Specialist Register.
Dr. Burgin can be contacted on This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 websites drmarkburgin.co.uk and gecko-alligator-babx.squarespace.com
Disability Analysis: A Practical Guide by Mark Burgin | 18 Oct 2024
This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.
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