Discovery Media Conference - How medical aids cover motor vehicle accidents
WE find it amusing that you try and portray some semblance of independence given your never ending series of partisan vitriol and steadfast refusal to publish the truth that all Attorneys, in particular Discovery’s panel attorneys ethically and according to the Law as it was understood prior to De La Guerre utilized common-law contingency fee agreements.
We also find Discovery’s frantic efforts at seeking to, yet again, conceal the truth and deflect attention from its unlawful fraudulent and immoral conduct by attacking us, entirely understandable, if amusing.
Our comment follows by page.
1. FULL COVER – Why does Discovery’s undertaking document refuse medical care unless the member signs the undertaking to claim from the RAF at own risk and costs and reimburse in full.
2. NO RAF CLAIM REQUIREMENT – Why then does Discovery have its Rule 15.6 which compels the member to “be obliged to take all steps which are necessary to timeously submit to the RAF a claim for compensation for the costs of any healthcare services performed and which in the future may be necessitated in connection with such injury and its Annexure C of exclusions which states “Expenses …. Will not be paid by the Scheme: 1.1 All costs of whatsoever nature incurred for treatment ……. of injuries sustained by a member or a dependent and for which any other party is liable.” I look forward with interest to you publishing Discovery’s undertaking to immediately remove Rule 15.6 and Exclusion 1.1. from its Rules.
3. No complaints received, other than from Ronald Bobroff & Partners. You are of course aware of Katz’s response when an attorney from the firm Houghton Harper stood up for the firm’s client by vigorously objecting to Discovery’s demands that the client sign Discovery’s notorious undertaking document. Katz personally telephoned the firm and threatened that he would effectively do the same to Attorney Harper as he was “doing to a large Johannesburg Plaintiff Practice.” I look forward to your publishing this. If you were an attorney representing personal injury clients and having witnessed the four year onslaught by Discovery and its proxies on me and my Practice, would you not take the easy route of simply telling the client that you are not prepared to subject yourself to what RBP are undergoing and that the client should fend for her or himself.
4. VOLUNTARY RAF CLAIM SUBMISSION – See Paragraph 2 above.
4.1 This allegation by Discovery is an out and out lie as the above rules make clear.
4.2 There is no cost to submitting a RAF claim – We find this strange as the cost of the statutory medical report which is required to be lodged by Law with the claim is seldom less than R1,000.00, and if the injury is serious such as to qualify for a 30% whole person impairment, a serious injury report is compulsory and cannot be obtained for less R8,000 – R12,000. If the injury is such as not to qualify for a 30% whole person impairment, and the claimant and/or the Attorney will only ascertain this once a serious injury assessment in terms of the American Medical Association Tables has been done, a detailed medico legal report in which the medical expert will be requested to motivate for a serious injury qualification based on the narrative test in the Road Accident Fund Act, has to be obtained at a cost ranging between R12,000 – R25,000. No sane claimant would try and lodge the claim him or herself as they would have absolutely no idea how to quantify same, to fall prey to the RAF lodging a claim on behalf of a victim against itself is a recipe for disaster, and the minimum hourly rate by attorneys of experience and competence is not less than R2,500 plus VAT per hour.
4.3 It is the universal experience of specialist plaintiff litigators that no compensation of any consequence is recoverable from the RAF absent litigation and settlement by way of trial or after judgment in a trial. Your good friend Mr Millar will no doubt enlighten you that Counsel, including the redoubtable Mr Ancer, price themselves between R25,000 and R40,000 per day and not much less in respect of experts.
5. DISCOVERY INTERACTS WITH OVER 1,100 LAWYERS – In a letter written by Katz to the Law Society in 2012 he noted that since the Law Society had sent its advisory urging its members to take proper care in advising their clients whether or not to accede to demands by Medical Schemes for reimbursement, Discovery’s rake off in respect of medical cost recovery had dropped to 25% of what it had been prior to the Law Society’s advisory. I am not aware of what percentage of medical costs expended in respect of road accidents is presently being recovered from members, but it is clear that any attorney who simply fails to properly advise their client as to the client’s liability to advise the medical scheme, is exposing him or herself to a malpractice claim should the client seek advice elsewhere as was the case in respect of a prominent Durban Attorney. More so now when the issue is so topical and no attorney can claim ignorance of the need to exercise caution. You will of course also be aware that Discovery’s panel of attorneys, who are presented with daily or weekly emails of potential clients to solicit, have to agree as a quid pro quo for the business that they will ensure that the client agrees (is forced) to refund Discovery in full. Also, although never disclosed to the client, a further carrot for betraying the client’s rights is that the panel is entitled to a secret common-law percentage contingency commission ranging between 10% - 15% of the amount the client is duressed to refund Discovery. We have copies of correspondence between Discovery and its panel attorneys as also evidence from former employees of panel attorneys in this regard.
6. THE APPROACH IS CONSISTENT WITH EVERY OTHER MEDICAL SCHEME IN THE MARKET – We are unaware of the approach of any other medical scheme is but we do know that the second largest medical scheme in the Country – GEMS was sufficiently ethical and fair to remove from its rules any obligation on members to have to claim from the RAF and reimburse the scheme. Further, in our Practice, in existence for some 40 years, we have never encountered the belligerence, arrogance and threats which routinely emanate from Discovery against its members/our clients, on the part of any other medical scheme. This was confirmed by large numbers of SAAPIL members in 2011 at the time of the Law Society’s advisories. We find it interesting that Discovery on this page admits that its members are required at own risk and cost to lodge claims against the RAF.
7. MR BELLON -
7.1 Mr Bellon’s wife was confronted by Discovery’s staff, whilst her brain injured husband was in intensive care in a coma, and she was compelled by threat that Discovery would immediately terminate his medical care and reclaim the cost of care already rendered, to sign Discovery’s notorious and unlawful, (as described by Advocate Trengove SC), undertaking. Some months later and whilst Mr Bellon was still severely compromised he was also forced by the same threats to sign Discoveries undertaking document.
7.2 After years of expensive and complex litigation, Mr Bellon’s claim was eventually settled for a lump sum with no detail being given as to whether any portion of such lump sum was in respect of medical costs. In either event, given Mr Bellon’s inability to recall the exact circumstances of the accident, he had to concede an apportionment – reduction in the damages due to him by 45%. NOTWITHSTANDING this Discovery have greedily claimed a refund of the full amount of R900,000 medical expenses from Mr Bellon, even though assuming the lump sum settlement included his medical expenses, only 55% of such expenses would have been paid by the RAF.
7.3 The very day on which Discovery MD Dr Jonathan Broomberg, was exposed on the John Robbie Show on Radio 702 as being less than truthful in respect of Discovery’s compliance with the Law, Discovery sued Mr Bellon and Ronald Bobroff and RBP. Both actions are being defended and shortly the matters were due to come to trial Discovery’s Lawyers requested that same be postponed. RBP are shortly to re-enrol the action against Mr Bellon for allocation of a trial date as Mr Bellon very much looks forward to the Directors of Discovery Health giving evidence and facing cross-examination on oath as to whether or not Discovery complies with the Law.
7.4 The Council for Medical Schemes has acted improperly and irregularly. Registrar, Dr M Gantsho, undertook to commence a forensic audit as to whether Discovery was complying with the compulsory provisions of the Medical Schemes Act in respect of its Brokers making full disclosure to prospective members of Discovery’s conditions and exclusions relating to road accident generated costs as also compliance with the compulsory requirement that members on admission to the Scheme be sent a detailed summary of the scheme’s rules. This was confirmed in writing, yet it never occurred.
7.5 After Mr Bellon’s complaint was lodged, unbeknown to Mr Bellon and ourselves as his representatives, the Registrar met with representatives of Discovery, permitted Discovery an extremely lengthy period of time for its Advocate to prepare a submission rebutting the complaint, and without furnishing us a copy of that submission so that Mr and Mrs Bellon be afforded an opportunity of rebutting, half-truths, inaccuracies and so on in the submission, the Registrar proceeded to deliver a one sided “kangaroo court” decision against Mr and Mrs Bellon. His ruling was simply a cut and paste of Discovery’s Counsel, Bhana SC’s submission. Mr Bellon has appealed this finding, a fact which Discovery routinely and its press hand-out you have sent to us conveniently fails to mention.
8. UNSCRUPULOUS RAF FRAUD EXPLOITS ACCIDENT VICTIMS AND MEDICAL SCHEMES –
8.1 An inconvenient truth for Discovery is that its panel attorneys have for a decade utilized the same common-law contingency fee agreement as RBP and thousands and thousands of attorneys utilized. Not a single complaint has been lodged against RBP in respect of its fees, by any clients save for Discovery’s stooges who were incited to do so. This was recognized by the Law Society in Affidavits filed by it in the Pretoria High Court.
8.2 Despite invitation to disclose against which “Attorneys” Discovery is assisting its members to lodge complaints with the Law Society of the Northern Provinces, it has failed to do so. We have no doubt that it is only against RBP, given RBP’s exposure of Discovery’s fraudulent non-disclosure of its exclusions and onerous conditions in respect of non-illness generated medical care. The Law Society stated in affidavits filed in the Pretoria High Court that the Application brought against it and RBP by Discovery in the name of Mr and Mrs Graham (the one and only client Discovery’s Katz was able to threaten and entice into doing so in return for being let off Discovery’s demand that he reimburse it R327,000), was not brought in the interests or for the benefit of Mr Graham but rather in Discovery’s interests because of an acrimonious dispute between Discovery and Ronald Bobroff.
9 CASE STUDY TO INDICATE TO HOW RAF STRIPPING WORKS – The concept is nonsensical and in both examples the Lawyer is entitled to his or her fee. We are not aware of any attorneys who contract with clients to charge a 40% contingency fee as the going rate ranges from the 25% - 33.3% in the case of Attorney De Broglio. There are attorneys who enter into common-law contingency fee agreements with their clients to charge an hourly rate and in which the agreement specifically states that the attorneys fee will not be limited or connected to the amount recovered for the client in any way. You have in your possession the agreement utilised by Norman Berger and Partners, which is such an agreement, and we have in our possession a number of their accounts to their clients where their fees are equivalent to 60% of the damages recovered. There is no rule of law or ethical rule that where an attorneys charges an hourly rate in respect of a non-contingent agreement, that the attorneys fee should be limited in any way to any proportion of damages recovered and it is a fact that in all forms of litigation including debt collections and commercial damages claims, time based non-contingent fees may even exceed the amount recovered for the client.
10. COMPLAINTS AGAINST RONALD BOBROFF & PARTNERS –
10.1 All Ronald Bobroff and Partners fee agreements with its clients were declared unlawful by the Constitutional Count – We have read the few judgments where the common-law contingency fee agreement recommended by the Law Society of the Northern Provinces was held to be invalid. Such agreements as you and Discovery are well aware, were utilized by the vast majority of personal injury attorneys, including every one of Discovery’s Panel Attorneys, excepting possibly those in the Western Cape.
10.2 We have not read in any judgment that any court declared “all Ronald Bobroff & Partners fee agreements with its clients to be unlawful”, it was only the few clients who were incited by Discovery to challenge RBP’s Law Society compliant common-law contingency fee agreements. RBP utilizes a variety of fee agreements in common with other attorneys. You have consistently failed to mention that Mr Millar has challenged the common-law fee agreements of a number of other attorneys, including Fluxmans, or that numerous other attorneys, especially those who advertise extensively, De Broglio, Flowers Vermaak, Levin Van Zyl, Josephs, have all utilized exactly the same agreements that we did.
10.3 The charges against Ronald and Darren Bobroff by the Grahams, were astonishingly formulated by Discovery’s Counsel, Gauntlett SC and thereafter Discovery Attorney, Mr Van Niekerk, was permitted to add to the charges as he wished. RBP will be raising the irregular conduct of the Legal Official concerned if and when Discovery’s Attotney, Mr Van Niekerk, eventually stops engineering postponements of the hearing of the Grahams’ allegations as he has done, and as confirmed by the Law Society in respect of the hearings, the date of which were agreed with him for November 2012 and June 2013. NOTWITHSTANDING THAT DISCOVERY’S LEGAL TEAM WERE PERMITTED TO FORMULATE THE CHARGES, WE CHALLENGE DISCOVERY TO FURNISH US WITH A CHARGE SHEET INCLUDING ANY ALLEGATION OF MISAPPROPRIATION OF FUNDS OR FORGERY. The Law Society Council resoundingly rejected any suggestion that there had been any misappropriation of funds by RBP in the Graham matter.
10.4 The Law Society opposed Discovery’s attempt to obtain an order giving it access to RBP’s records so that it could identify clients whom it would incite to challenge RBP’s common-law fees. The Law Society has never sought, of its own accord, to inspect RBP’s books and as recently as September 2014, its President filed an affidavit in the Pretoria High Court making that clear. The reason RBP opposes the order made by the Pretoria High Court was that such order was wholly inconsistent with 83 paragraphs of the judgment and grants Discovery – a commercial enemy of RBP – unprecedented access to the private and confidential records of RBP and its clients.
10.5 There was no independent forensic accountant involved but rather an accountant instructed and paid by Discovery to serve Discovery’s interests in commenting on two ledgers stolen from RBP by one of its former bookkeepers – Ms Bernadine Van Wyk – unbeknown to RBP at 10 times convicted fraudster and jailbird, and recruited according to an affidavit in RBP’s possession, by Discovery and its proxies, to serve their interests and set up RBP. RBP has responded in full to the Discovery funded auditor’s report and the Law Society accepted RBP’s response on the basis that no inspection of RBP’s books was required in accordance therewith and that the matter be left in the hands of the Disciplinary Committee appointed to deal with the Graham complaint.
11. COURT RULINGS AGAINST RONALD BOBROFF & PARTNERS –
11.1 All the judgments relating to common-law contingency fees are applicable to every one of the Law Society’s 16,000 members, none of whom may be fairly accused of acting in any way improperly in following the good faith rulings of the Law Society, in contracting with their clients accordingly. The Constitutional Court itself found no cause to make negative comments concerning RBP or any attorneys who utilized common-law fee agreements when it stated:
“Certain Law Societies made rulings allowing their members to charge in excess of the percentages set in the Act.6 Uncertainty reigned in the attorneys‘ profession about the correct legal position in relation to contingency fees. Could these fees be charged only under the Act, or also outside its provisions? Bobroff was one of the firms which charged more than allowed for in the Act, as the rules of its professional association allowed. “
11.2 In the matter of Glen Vivian, Mr Vivian was insistent that RBP should settle his claim for R45,000 as offered by the RAF. It was only after extensive persuasion by RBP that his claim was worth more that he agreed to go forward , after extensive litigation at enormous cost and risk to RBP an astounding award of R4.4 million was obtained for Mr Vivian and we have his emails instructing RBP to settle for R45 000 as also those expressing his profuse gratitude at the outstanding result. It was only after he was incited that he greedily instructed Mr Millar to challenge RBP’s Law Society’ compliant fee agreement.
12. COUNCIL FOR MEDICAL SCHEMES HAS REITERATED ITS SUPPORT FOR DISCOVERY HEALTH IN THIS MATTER – It is regrettable that the CMS, which is supposed to look to the interests of members of medical schemes, should permit itself to be used to further the interests of a scheme, which by every account has flagrantly, deliberately and extensively ignored compulsory provisions of the Medical Schemes Act. A scheme that has fraudulent concealed its exclusions and onerous conditions applicable to non-sickness generated medical care from its members for years, and who bullies and abuses members who sustain injury in road accidents.
Sincerely RONALD BOBROFF