Month: April 2012

Stephanie Prior explores the road to recovery
In December 2011, an article was published in the National Post (‘Breast-implant-safety fears spread worldwide on eve of French recall announcement’, by Kate Kelland and Daniel Flynn), which revealed that the French government proposes to pay for ten thousands of French women to have breast implants removed if they are found to be responsible for causing cancer. The government said that they would not pay for inserting new implants unless the patient can show that they had reconstructive surgery following a mastectomy.

This controversy hit the headlines at a time when breast implants are increasingly popular.

Apparently over 40,000 women in the UK have been warned that their brand of breast implants – poly implant prothese (or PIP, as the French silicone implants are referred to) were made using industrial mattress filling. In 2011, eight women with this type of implant developed cancer although the authorities have now dismissed a link. It would seem that the greatest fear is that these implants could be leaking. They have a higher rupture rate than normal implants, which is usually 1% to 2%. However, the PIP implants rate is 5% according to the French authorities. Cosmetic breast surgery is very popular. The first surgical procedure was carried out in 1962 in the UK and statistics show that approximately 10,000 women have breast implants in the UK each year.

The current PIP scare is not the first. In 1992, there was a silicone scare in the United States. The US government temporarily removed silicone implants from the market in 1992 because they caused patient complications. Silicone-gel-filled implants are now available again in the USA. The US Food and Drug Association (FDA) approved silicone implants and they are safe to use if a doctor feels that you are a good candidate for them, although experts agree, however, that silicone implants are not right for all patients. Thereafter, many women in the UK simply opted for saline implants instead.

Trilucent implants
Then, in May 2000, apparently 5,000 women had received spya-oil-filled implants called Trilucent and these had to be removed due to concerns regarding toxicity. The Medical Devices Agency (MDA) was concerned about the long-term safety data in relation to the Trilucent breast implants and the concern was in relation to the breakdown of the lipid filler. Accordingly, samples from the explants and the retained implants apparently contained millimolar amounts of at least one type of aldehyde – a degradation product that would react with protein and DNA. All women who had these implants were advised to have them removed. This scare did not stop women wanting breast augmentation surgery and statistics show that between 2000 and 2007 the amount of women having implants went up by a massive 275%. There are, of course, lots of potential risks and side effects associated with this surgery, which can include: post-operative infection, chronic breast pain, breakage, necrosis of breast tissue, nipple numbness and leakage. Despite these risk factors, breast augmentation surgery is accordingly one of the most popular surgical procedures carried out today.

PIP implants
So, the controversial implants PIP have been linked by reports in France to the death of a woman from a rare form of cancer anaplastic large cell lymphoma (ALCL). It has been estimated that 300,000 women around the world have PIP implants. In its day, the company was once the world’s third largest producer of silicone implants, producing 100,000 per year and exporting 80% of its output. However, PIP itself was shut down and its product was banned last year, after it became apparent that the company was using non-authorised silicone gel that caused abnormally high rupture rates of these implants. More than 2,000 2 women have PIP.
In France about 523 women have had their implants removed and a further eight cases of cancer have been reported in patients with PUIP implants. Currently, it has been announced that the Welsh NHS are to pay to replace privately fitted PIP implants. Women in wales who have had PIP implants at private clinics can have them replaced for free on the NHS. To have the surgery, the women must prove that they have sought redress from their private care provider and they must be resident and registered with a GP in Wales.

In December 2011, French authorities recommended that 30,000 women have faulty breast implants removed as a precaution. Shockingly, Jean Claude Mas, the PIP breast implant boss, has been charged with causing bodily harm and has been placed under investigation on criminal charges. He is not being investigated on a more serious manslaughter charge over the 2010 cancer death of a French woman with PIP implants, but he will face a separate fraud trial over the manufacture of the implants, which is expected to begin in October 2012. Apparently, Mr Mas had been using a homemade silicone gel concoction to cut costs. This gel had not been approved for medical use and included a mixture of agricultural and industrial grade silicone. The French authorities banned the PIP products nearly two years ago and French women that have been campaigning against PIP since then have welcomed Mr Mas’ arrest and investigation.

So what can be done? I have received many enquiries from women who are concerned about their breast implants and I have recently met with two such women who have received treatment at the same hospital under the same surgeon. Both women are disappointed with the outcome of their surgery, both are in constant pain, and both would like the implants removed as soon as possible. In fact one of these women feels that her implants is leaking and the other women definitely knows that her implant is actually folded in half and thus causing a tight band across her chest and this leads to constant pain. This is not what she agreed to. Unfortunately, both of these women have been abandoned by their treating surgeon and the medical group who were initially happy to accept their money for payment of the surgery has been unwilling to provide them with any helpful advice. It would therefore seem that litigation is the only option.

Of course, if litigation is pursued the correct defendant will have to be identified and specific allegations of negligence will have to be included. Obviously each case will be different and some women will complain about the PIP implants and the fact that they should not have had these in the first place. Other women will be complaining because the breast augmentation surgery was not carried out to the standard of which they required.

The UK Association of Aesthetic Plastic Surgery KAAPS (http://ukaaps.org/) has created a register for women who have had breast augmentation surgery to log their implants and surgeon on to its sister site, The Association of Breast Surgery (http://www.breastimplantassociation.org/). This can easily help with early identification of any surgeon who has high complication rates and any implant with high problem rates so that the industry can be more proactive in resolving issues that arise. Further, Facebook support groups have also been set out to assist women to discuss the issues that have arisen from the PIP announcement.

PIP implant update
Claims may arise from this should those women affected by faulty PIP implant prostheses (PIP) in the UK wish to take action to reclaim the costs of further corrective surgery. At the time of this article the position in the UK is that:

In England, patients fitted with PIP implants by the NHS will have them replaced by the health service, while it will remove implants from private patients if their clinics refuse. The NHS in Wales said it would replace implants only when it was deemed medically necessary.

Women in Northern Ireland who received PIP implants for health reasons will have them replaced, but the NHS will only remove, not replace, those inserted for cosmetic reasons.

Scotland’s Health Secretary Nicola Sturgeon said concerned women who had them fitted privately would be offered advice and the option of removal if necessary. There are no records of PIP implants being used by the NHS.

Further:

Transform, which has just over 4.000 UK patients with the implants, had originally said patients would have to pay for removal. It now says those who have had the implants fitted since 2001 can have free removal – but will have to pay around 2,500 for replacements.

Those who had replacements since 2006 may still be within their warranty period and would therefore get both removal and replacement for free.

Also:

The Hospital Group also announced it would offer free removal for patients who had PIP implants fitted between 2001 and 2009 – but would charge between £1,500 and ££3,500 for replacements.

It all seems promising for those wanting redress, although it is likely to be very difficult for many women who will have to make a decision to have their implants removed and who will have to undergo a further surgical procedure to insert new, safer implants if that is at all possible.

Credit goes to Stephanie Prior, Solicitor. This article appeared in The Personal Injury Care Law Journal March 2012.

+Richard Meggitt

• Nearly 1000 processed claims later, the system is system working well
• CMC’s biggest driver of fraudulent claims
• There would be consequences to significantly reduced fees

Fraud

I understand the considerable concern expressed by the Association of British Insurers and also the Government about the level of fraud in Road Traffic Accidents. This is both in terms of fraudulent claims and exaggeration of injuries.

The most important persons in the fight against fraud and exaggeration are not the insurers nor the law makers, but Claimant solicitors. It is Claimant solicitors who have the first contact with the client, it is they who put forward the Claimant’s claim and process the claims. The current fee structure enables Claimants solicitors to take reasonable steps to prevent fraudulent claims and identify exaggeration. What the insurers fail to understand and what the Government appears to overlook is that we have no interest in dealing with fraudulent or exaggerated cases. Ultimately it is the Claimant’s Solicitor who is likely to be out of pocket through unrecoverable disbursements and referral fees.

Be Careful What You Wish For

I have processed nearly 1000 claims under the new Process. The current fee structure enables my Firm to see the Claimant in person in every case. This is done by a Solicitor not an unqualified person. This obviously assists in respect of client care and client relations. However in our experience by seeing the Claimant in person it enables us to identify potential fraudulent claims. Indeed we reject scores of cases every year after seeing individuals in person if we feel either that the Claimant is not genuine or the injuries are being exaggerated. It would be much more difficult if not impossible to do this over the phone or by ‘form filling’. Moreover, the current fee structure enables us to employ a member of staff to obtain and check all medical records and notes. Once again this is part of the fight against fraudulent claims. We ask Claimants about their claim history and this information is checked against the medical records and notes. The medical records and notes also enable us to check to make sure that there are no inconsistencies with regards to the instructions provided at the original meeting. Because we are able to meet the Claimant in person we can be sure what information was given to us at the original discussion. Finally the current fee structure enables us to instruct an Orthopaedic Surgeon in the majority of cases. He adopts a robust approach in respect of exaggeration. A significant reduction in fees could in fact increase the level of fraud, increase costs and ultimately increase insurance premiums not reduce it.

Beware of Unintended Consequences

A significant reduction in the Portal Costs would mean that it is unlikely that a solicitor would be able to be employed to process the claim. For example in our scenario a solicitor would not be able to see the Claimant in person. Nor would it be possible to obtain and review medical records and notes. This would increase significantly instructions taken on the telephone. The whole process would be reduced to a form filling exercise. Gone would be the numerous checks that we have in place to detect exaggeration and fraud. This would significantly increase the number of claims not decrease it. Removing the solicitor from the process would result in an increase in the number of claims that would be entered into the Portal.
If the number of fraudulent claims did increase then the percentage of claims exiting the current RTA Claims Process would also increase. This would remove a large number of cases from the RTA Claims Portal and of course those costs would be subject to the current predictable costs scheme which is, on average, higher than the RTA Claims Portal costs. Therefore a significant reduction in fees or indeed any reduction any fees is likely to result in increased costs, increase in the number of claims and, most importantly, an increase in the number of fraudulent claims. By reducing the Portal costs the Government could actually make matters significantly worse.

Fraudulent claims likely to rise

If the Government reduced the Portal costs significantly then it would increase the differential between the RTA Claims Portal costs and predictable costs. It is likely that the way the claims are processed would change. If the Defendant failed to comply with the strict timetable laid down in the RTA Claims Process then it is much more likely that the Claimant’s solicitors would exit. They would exit so that predictable costs were to apply to the claim rather than RTA Claims Process costs. This is likely to increase costs and also increase satellite litigation. Another unintended consequence is the attitude of the insurer to claims that maybe fraudulent or where the Claimant was possibly exaggerating. In those circumstances the insurer is likely to simply accept the claim and make payment in order to prevent the matter from exiting the RTA Claims Process. By exiting the costs would significantly increase. The number of claims and the number of fraudulent claims are likely to increase in such circumstances.

The System is Working

The current system although met with some scepticism from APIL members is, in my view, working well. I have processed nearly 1000 claims through the Portal. The process is streamlined and much simpler for the Claimant. There has been a significant reduction in disputed cases and the need to proceed to a fast track trial to determine quantum. We have had a number of hearings through the Portal but these are simpler and the costs are significantly less it is also quicker and more straightforward for the Claimant. The Government should pause for thought before altering the system and more importantly the costs as in my view if the costs were significantly reduced or reduced at all then the attitude of co-operation developed over the last 2 years and the fight against fraud is likely to disappear.

Pause for Thought / Referral Fee Ban

My own view is that Claims Management Companies are the biggest driver of fraudulent claims. They are incentivised by seeking a referral by selling details of the Claimant to a Solicitor for the highest fee. They do not care whether the Claimant’s claim is genuine or exaggerated as the referral fees are paid by the Solicitor as the beginning of the case. The banning of the referral fees should, in my view, reduce the number of claims. This will only work in my view if the ban is properly enforced and that any sort of payment is made unlawful. It must be remembered that the biggest 2 claims management companies (the Accident Group and Claims Direct) existed at a time when referral fees were banned. The referral fee was dressed up as an Accident Investigation Fee. A review of the fee structure should take place 12 months after the referral fee ban has come into effect.

I trust this information assists. The views expressed are mine and necessarily the view of my firm. My firm does not accept referrals from Claims Management Companies nor Insurers.

Relevant Resources

1. The High Price of Using a Claims Management Company
2. Claims Management Company versus Law Firm: what’s the difference?
3. CMCs Leave One In Four Claimants In Debt: Will Increased Ombudsman Powers Help?

+Richard Meggitt

 

• Introduction to who we are
• Aiming for the best results at all times
• 25 years service

 

What you can expect 

Accident victims who have suffered a serious injury or injuries require immediate attention, in our view. After 25 years service to the people of Sheffield and elsewhere, these are the matters which we regard as most important.

 

Immediate attention

We see new clients within 3 hours of receiving a telephone call. We tend to visit clients in their own home (or in hospital) because we find clients prefer this. Alternatively we welcome clients in our office if they wish to come to us.

 

Solicitor representation

All work on behalf of clients is carried out by a qualified Solicitor. This is not the case with every firm. From the moment we meet a client their interests are looked after by an experienced Personal Injury Solicitor.

 

Immediate Action

We send out a letter of claim to the guilty party the same day we meet a new client. There is no delay. This culture of ‘immediate action’ continues throughout the ‘life’ of a claim, It leads to settlement of cases or a court hearing (where unavoidable) in the least possible time. No Client wishes his or her claim to go on a moment longer than it needs to because it is stressful.

 

Interest Free Loan

Accident victims having suffered a serious injury will be unable to work and often are completely without money. In most cases we help clients by making an interest free loan to them.

 

Rehabilitation Treatment

We can arrange treatment immediately to assist recovery. This is vital if a speedy and full recovery is to be achieved – it is free to our clients.

 

Information / Access

We update our clients regularly in relation to the progress of their claim. We always return calls and answer letters promptly. If you have a query, pick up the phone and speak to us anytime. We are always available. Regular contact keeps the stress level down!

 

Our Goal

Our aim is to win compensation for our clients in the quickest time possible but always at a level consistent with the “going rate”! That is to say the amount a court would award if the case went to court.

 

Court

Most cases result in an out of Court settlement, compensation being agreed between the parties. If agreement cannot be reached then a court decides the appropriate level of compensation for injury and financial loss. We strive to reach out of court settlements because we understand that a court hearing can be stressful for clients.

 

Our Promise

Our obligation to you, the Client, is to gain the maximum compensation in the shortest time possible, with as little stress as possible. In short to provide a “Rolls Royce” service FREE OF CHARGE.

• The service to you will be free, with a guarantee that you will receive 100% of your compensation
• You will be dealt with by a Solicitor from the Serious Injury Team throughout the life of your case.
• We will give you an interest free loan of up to £2500, if required*
• We will arrange an immediate needs assessment to be carried out by a rehabilitation company
• We will, at the earliest opportunity, secure an interim payment for you
• You will be seen ‘face to face’ throughout your claim

 

Relevant Resources

1. Corporate Manslaughter
2. Dealing With An Accident At Work – Start Of The Claim
3. Dealing With An Accident At Work – End Of The Claim

+Richard Meggitt