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Opinion

The role of a serious injury lawyer in rehabilitation

By David Withers, partner in the serious injury team in Irwin Mitchell’s Sheffield Office.

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The role of a serious injury lawyer is varied and complex. Our clients have sustained life-changing injuries which have a long-term impact on all areas of their life including their family life.

Rehabilitation

The Serious Injury Guide 2015 (the Guide) seeks to put the interests of the seriously injured person at the centre of the litigation and accompanies the Rehabilitation Code 2015.

Although the Guide is not mandatory, many claimant and defendant solicitors and insurance companies have become signatories to the Guide and commit, on behalf of their organisations, to comply with the principles and ethos.

David Withers

The aims of the guide are to resolve liability as quickly as possible. It provides early access to rehabilitation for claimants to maximise their recovery where it would be beneficial, to resolve claims cost effectively and proportionately and within an agreed timeframe, and to create an environment of mutual trust, transparency and collaboration.

Our clients’ worlds have been turned upside down. They want to maximise their recovery. There is often an unrealistic expectation as to how they might recover to their old life, certainly initially due to limited insight.

A serious injury lawyer’s role is to manage their expectations, agree with the defendant about rehabilitation funding or take advantage of deferred payment arrangements or private insurance and make the necessary introductions to first class clinicians and therapists.

With serious injuries, there is often a small window where our clients can maximise their recovery. It is vital that rehabilitation is considered at an early stage. Our clients frequently say that the acute and often life-saving treatment they have received is first-class, particularly if they have been treated in a major trauma centre, but that the rehabilitation is then quite limited thereafter.

Effective rehabilitation can vary significantly. A serious injury lawyer will consider the injured individual’s as a person and focus on all of their needs. This includes housing, aids and equipment, care, social enablement, transport, financial security, re-assurance about the future, therapy, medical treatment and other legal services that they may benefit from.

Best practice

In this section, I have identified what has worked particularly well on Irwin Mitchell’s serious injury cases. It is recognised that there may be other ways in which to showcase best practice.

Collaboration with the defendant’s legal team is vital. There should be a genuine commitment to resolve liability as quickly as possible and focus both before and after liability has been resolved, on maximising the injured person’s recovery.

This could include agreements with defendant legal teams, which include no early Part 36 offers before a negotiation meeting has taken place, interim payments and rehabilitation funding in exchange for access to the injured individual for medico-legal examinations. Other requirements could be voluntary disclosure of records and frequent dialog between the parties to focus on and narrow the central issues. This could also mean the defendant legal team attending MDT meetings when appropriate.

Joint or unilateral instructions will need to be considered on a case-by-case basis but my view is that jointly instructed rehabilitation providers are much better than having no rehabilitation providers if liability is disputed.

The rehabilitation must never become standard or generic. The rehabilitation must be tailored to each and every injured individual that we represent. They will all have different functional impairments. The lives they had and the lives they want will be completely different. Their motivations will be different. If the rehabilitation is tailored to the individual and they have bought into what the rehabilitation team is trying to achieve, the goals will be clearly identified which will avoid any arguments about recoverability at a later stage.

The goals must motivate the injured person. If they do not, the serious injury lawyer should question whether that form of rehabilitation is the most appropriate way to maximise their recovery.

The serious injury lawyer should attend the MDT meetings if at all possible. The legal claim is a significant part of the injured person’s life. There is an overlap because the claim is funding the private input. The clinicians and therapists should have a good relationship with the serious injury lawyer. They should be able to pick up the phone to talk through any challenges faced. The claim and the rehabilitation should never be seen as two separate processes.

Consideration should also be given to other legal or financial services that the client may require. This may include investment advice, setting up a personal injury trust or applying for a Deputyship Order, creating or updating a will, executing a Power of Attorney or seeking employment advice if the injured person is at risk of losing their job. Also, conveyancing may be required if there is a need for alternative accommodation, as well as family law if a relationship has broken down or is at risk of doing do. Irwin Mitchell is a full-service-offering law firm; we view holistic legal advice as a central part of the rehabilitation process. If the injured person’s legal needs are protected, they can focus on maximising their recovery.

The benefits of rehabilitation

In early 2017, Simon sustained serious injuries following a road traffic incident. The defendant driver was primarily at fault however Simon accepted that he held a proportion of the responsibility for the very unfortunate incident and the resulting injuries.

Simon was treated at the Queen’s Medical Centre. He was then transferred to Royal Derby Hospital where he remained for a period of six months. He received life-saving treatment. He was diagnosed as suffering from a severe traumatic brain injury. A CT scan identifiedleft frontal and parietal haemorrhages alongside the presence of a thalamic haemorrhage which indicated a diffuse axonal brain injury.

An initial notification letter and a letter before action were sent quickly to the relevant insurer to enable them to undertake their investigations quickly. In the letter, Irwin Mitchell indicated a preference to deal with the claim in accordance with the Guide.

Within days, there was dialog between both parties. The criminal proceedings were ongoing but despite that, the insurer agreed to fund rehabilitation assessments, the funding of which was of course without prejudice to liability at that stage. The parties also agreed to attend a way forward meeting with an acceptance that face-to-face contact, on serious injury cases, is particularly useful to build an effective working relationship, identify the central issues and plan a way forward.

At the way forward meeting, Simon and his family attended. There was a commitment to putting Simon at the centre of the process. The insurer and their solicitors gave a further commitment to funding rehabilitation. The parties agreed that no Part 36 offers should be made at least until they had had a joint settlement meeting at the appropriate time. As a result of this agreement, Simon was willing to allow the insurer’s solicitors to attend the multi-disciplinary team meetings. There were additional face-to-face and telephone discussions frequently between the legal teams.

The criminal investigation was ongoing. The parties managed to secure early disclosure from the police in accordance with the National Policing Guidance issued by the College of Policing. This enabled the parties to discuss the issue of liability. There was acceptance on behalf of Simon and his legal team at Irwin Mitchell that there would be contributory negligence.

A sensible position was adopted. The parties had a number of informal discussions about the percentage reduction that should apply. An apportionment was subsequently agreed at 70:30% in Simon’s favour. The parties negotiated a costs settlement at this point up until the date when the liability apportionment was agreed. The costs negotiations were dealt with quickly and sensibly, resulting in a rapid conclusion.

Despite this apportionment, the insurer continued to fund the rehabilitation programme at 100%, showcasing their genuine commitment to maximising Simon’s recovery. This enabled Simon to engage in his rehabilitation without worrying about paying for therapy at 100%, only to recover 70% from the defendant.

When discharged from the hospital, Simon struggled with his balance and required a wheelchair to mobilise. He also had reduced voice strength and slurred speech due to vocal cord palsy from his brain injury. Due to the input of early rehabilitation, Simon was able to mobilise independently, improve the strength of his upper limbs and improve the quality of his speech; which will have a great effect on Simon’s quality of life for the foreseeable future.

After Simon had benefited from rehabilitation for approximately 12 months, the parties’ solicitors agreed to pencil in a date for a Joint Settlement Meeting to take place in a further 12 months’ time (near to the 2ndanniversary of the incident). The parties’ solicitors scheduled telephone discussions frequently to update each other about key evidential developments and to ensure that the parties closely communicated. They also discussed the case at the multi-disciplinary team meetings.

The likely issues to be discussed at the Joint Settlement Meeting (care, deterioration, accommodation, Court of Protection) were identified and the parties focussed their efforts on securing evidence to ensure that there was a meaningful discussion at the meeting. Both parties had a significant amount of expert evidence. Simon’s legal team also obtained a significant amount of documentary and witness of fact evidence.

Just after the second anniversary, the parties attended a Joint Settlement Meeting. A sensible and fair settlement was achieved, taking into account both parties’ positions on the key issues. The outstanding legal costs were also negotiated on the day, meaning that both parties could leave the meeting with certainty as to their positions, subject to a few procedural steps that were required; namely, discharging the litigation friend as Simon had, largely through the effective rehabilitation that he had received, regained capacity to litigate and to manage his own property and financial affairs.

Showcasing their commitment one final time on this case, the insurer agreed to fund the rehabilitation at 100% for a further three months until the procedural aspects of the case had concluded.

The early settlement gave Simon the option to move on with his life relatively soon after the incident. He now has plans to purchase the property of his dreams and continue focussing on maximising his quality of life.

The way this case was dealt with was very refreshing. There was frequent dialog between the parties’ legal teams and the insurer. The insurer seemed genuinely committed to improving Simon’s quality of life through effective rehabilitation.

It even funded items throughout the case that theydid not think would make a huge difference but which were important to Simon. I was particularly impressed with the defendant’s solicitor.

Despite advocating the insurer’s best case throughout the litigation, she focussed on the key issues, raising their best points as and when required, whilst remaining pleasant, friendly and easy to deal with throughout. At the end of the litigation, Simon’s family even said that they would be sad not to see the defendant’s solicitor any more at the multi-disciplinary team meetings.

There were huge benefits to both parties as a result of utilising the Serious Injury Guide and complying with the ethos. The legal costs were significantly less than in most serious injury cases because of the sensible approach taken by all and the early rehabilitation which was implemented.

The issues were identified at an early stage and the parties focussed their efforts on resolving those issues. The defendant team were in the loop about the rehabilitation and understood Simon’s priorities. It was really refreshing to see how effective the Guide can work in practice for the benefit of the seriously injury person and their families, but also for other stakeholders to the litigation.

Simon is now receiving investment advice from IM Asset Management. He is updating his will and purchasing his own home. He has also been advised about the risk of any dependency if he enters into a relationship given that he has secured a significant sum of money to meet his reasonable needs for the rest of his life. His settlement money has been placed in a trust to provide some protection for the future.

David Withers, who represented Simon, is a partner in the serious injury team in Irwin Mitchell’s Sheffield Office. He leads a team of serious injury specialists dealing with life-changing injuries.

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News

Adventures in online conferencing

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Merryn Dowson, of rehab goal-setting platform Goal Manager, on why the virtual conference should endure long after COVID-19’s limitations are gone.

Just in case you hadn’t noticed, the last year has been a little bit different from previous years and by ‘different’ I, of course, mean ‘online’.

Conferences have been no exception. Instead of arriving at a large hall, picking up the first of the day’s seven coffees and scanning the room for the best pens on offer, we are finishing off our morning routines and setting our out-of-office email only to sit in the same chair and log in to an online virtual conference.

In March we may have hoped that these conferences would actually happen in person and that the world would quickly get back on its axis but we soon realised that this would not be the case.

We were to access it all from our computers, perched wherever we can manage in our homes.

In August, I had my first taste of this unprecedented, socially- distanced, new-normal approach to conferences by logging on to that of the American Psychological Association (APA).

For many, a previously inaccessible conference due to travel and registration fees, this year it was beamed on to my laptop at a comparatively low cost.

Not only that but, unlike at physical conferences, I did not have worry about rushing from room to room, all of my belongings slung over my arm (including a tote bag of the aforementioned pens), hoping to make it on time to the next talk I had circled in the programme.

I was able to click freely between ‘rooms’, catching the end of the talks while the kettle boiled in anticipation of the next speaker. I made notes from the comfort of my desk, no balancing a free notepad on my knee.

It was refreshing. Even if I missed a talk because I dipped back into some work (another luxury of the online conference), I was safe in the knowledge that it remains online for the rest of the year to be viewed at my leisure.

I had the privilege of seeing this from the presenter side too. In October, Dr Penny Trayner, Dr Andrew Bateman and I delivered an instructional course on best-practice goal setting in clinical practice at the annual conference of the American Congress of Rehabilitation Medicine (ACRM).

Although a complex presentation involving multiple presenters and real-world video examples, unusually, there was no sense of trepidation about everything going to plan because, like the other presenters, we had already submitted a video of the entire workshop to be broadcast right on time.

There was simply a sense of calm excitement. We were able to join the attendees in the live discussion chat, respond immediately to questions and follow the buzz on Twitter.

We were even able to ask participants to log in to Goal Manager, a cloud-based platform for facilitating the key processes of goal setting, and ‘follow along’ with a case example by filling out a patient profile using the knowledge and skills developed during the course.

This would not have been as accessible had everyone been gathered in a room, rather than sat at their computers. At the end, we hosted a live Q+A with the workshop participants and it truly had that sense of community that we all attend conferences for, connecting everyone with a shared interest live from their living rooms across the globe.

This continued throughout the conference including the poster presentations. As we well know, posters are often presented in the same room as a substantial lunch and, occasionally, complementary wine. This can make it slightly difficult to having a meaningful discussion with someone about their life’s work and the next huge contribution to neurorehabilitation.

Instead, this year’s posters were displayed on screen with a short pre-recorded narration of key themes and findings.

Dr Trayner and I presented an evaluation of real world systemic interventions run within Clinical Neuropsychology Services and we were able to give much more of an insight into the bootcamp we ran, the parenting course we delivered, and the DJ skills programme that Dr Trayner has helped to coordinate.

We were able to answer questions on these interventions both during the poster presentation and for a while afterwards on social media as people continued to revisit all of the posters long after each session. This meant that we too were able to see others’ posters and ask them questions. Everything was at our fingertips.

Of course, I describe all of this understanding its overwhelming sense of novelty.

While I have very much enjoyed learning about the latest developments in our field while wearing considerably more comfortable trousers than I would permit myself to wear in public, I would love to be in a room with the innovators, pioneers and trailblazers of neurorehabilitation, each eager to share new ideas (not forgetting the free pens – have I mentioned those?).

Networks are built at these events that go on to forge lasting collaborations and amazing developments.

Whereas academia and specialised clinical work can often exist in silos across the country, continent and world, conferences bring everyone together.

I look forward to the next event that is held in person however I do hope that not everything from this new world is discarded too quickly. This year has shown us how so many barriers to access can be broken down just by a few additions. The option for online attendance has provided entry to previously inaccessible events; the ability to re-watch talks for months afterwards has taken away the pressure of cramming hours of content into a few days while abandoning all other commitments. More people have access to the discussions and ideas shared than ever before. I hope the concessions that allow this to happen remain long after the many advantages to physical conferences resume.

In the meantime, however, I enjoy the literal home comforts that this new age of conferences brings.

As you read this article, I will have recently attended the Time For Change Online Summit by the UK Acquired Brain Injury Forum (UKABIF) with my cat on my lap and my favourite mug in hand.

At least for the time being, that is something to be enjoyed. Until I run out of pens.

www.goalmanager.co.uk

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News

Editor’s comment: Onwards and upwards in 2021

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In a former life in newspapers, it was at this time of year that the dreaded churn of annual reviews and previews came…

Ups and downs of the months gone by and ill- informed soothsaying for the year ahead served only to plug the festive news glut.

Pity the junior reporter seeking their highlights of 2020. This year feels less a series of chronological news events and more a mighty tempest that has shaken our entire reality off course.

There are some positives shining through the storm, but their longevity can barely be contemplated before we’ve worked out exactly what 2020 was all about.

There has been much talk of the great technology embrace; and telemedicine and digital health purveyors have certainly been among the winners this year.

New ways of working have emerged and now feel like they’re here to stay, with hours spent travelling to meetings replaced by a few moments positioning laptops and checking audio.

Other silverlinings of the year include fresh investment in health innovation and greater respect for key workers in all their many roles.

Perhaps the most widely felt positive of 2020, however, is its hammer-blow reminder of the importance of human interaction. Smiles hidden behind masks. Embraces blocked by glass. Conversations hindered by dodgy wifi. Each momentary expression of COVID life reminds us of what we’re missing – and hopefully what we can look forward to in 2021.

Neuro-rehab professionals have fought hard to preserve what remnants of direct human interaction they safely can in the lives of their clients.

Many facilities have moved heaven and earth to enable safe visiting of family members, and the crucial interactions with the cast of professionals helping them on the road to independence.

And this is no mere sentimentality or what corporate speak terms a ‘nice-to-have’. It is borne out of a recognition of the pivotal input of people, both family members and professionals, in the rehab journey which no amount of machinery or bandwidth can replace.

I wish all our readers the very best for 2021 – a year which is loaded with optimism and an eagerness to move on from 2020’s challenges.

As the Blairite anthem goes, things can only get better!

Andrew Mernin is editor-in-chief at NR Times. 

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Legal

Hydrotherapy pools at home – are they necessary?

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By David Withers, partner at Irwin Mitchell.

In serious injury cases, the parties can often disagree about whether an injured person has a need for a hydrotherapy pool. The installation, and subsequent maintenance, costs of a hydrotherapy pool are significant. This is often one of the most contentious heads of loss that arises in a serious injury case.

Legal position

In tort, the principle of “restitution in integrum” applies. This means that insofar as is possible the injured person should be put back in the position that they would have been in but for the negligence [see Livingstone – v – Rawyards Coal Co (1980) 5 App Cas 25]. This is often known as the full compensation principle.

There is no financial limit. The consequences for the Defendant of a high award of damages are not considered [see Lim Poh Choo – v – Islington Area Health Authority (1980) AC 174].

The general rule is that “he who asserts must prove” [see Robins – v – National Trust Co (1927) AC 515.

More recently, the concept of proportionality has been developed in the context of assessing damages in high value cases. For example, in Whiten – v – St George’s Healthcare NHS Trust [2011] EWCH 2066 (QB), Swift J stated that when considering whether actual or proposed expenditure is reasonable, she had regard to proportionality as between the cost to the Defendant and the extent of the benefit which would be derived by the injured person.

In Ellison – v – University Hospitals of Morecambe Bay NHS Foundation Trust [2015] EWHC 366 (QB), Warby J rejected the argument that an injured person should not recover the cost of a particular item if the cost was disproportionately high in comparison with the benefit achieved.

Therefore, in summary, if an injured person has a need for hydrotherapy which cannot be met in any other way realistically, the cost of a hydrotherapy pool will be allowed.

If an injured person has a need for hydrotherapy but that need can be met realistically in some other less expensive way, the cost of a hydrotherapy pool will probably not be allowed.

The costs of a hydrotherapy pool are likely to be allowed if:

  • an injured person has a daily need for hydrotherapy;
  • this is supported by the relevant medical experts and the physiotherapy expert;
  • the injured person reports feeling much better after the sessions;
  • there is a track record of engagement with hydrotherapy provision if possible, evidenced in the notes and in invoices; and
  • there is evidence that alternative provision either does not exist or is completely impractical.

Although each claim is of course fact specific and bespoke to the injured person, if there is a clinical need for hydrotherapy, identified by the relevant medical expert(s) and the physiotherapist and the need arises frequently (the authors would say on at least a weekly basis), the costs associated with a hydrotherapy pool should be recovered.

There is, however, a mix of case law and no guarantees about recoverability can ever be made. For example, in Robshaw – v – United Lincolnshire Hospitals NHS Trust [2015] EWHC 923 (QB), the cost of a hydrotherapy pool was allowed, whereas in JR – v – Sheffield Teaching Hospitals NHS Foundation Trust [2017] EWHC 1245 (QB), the cost of a hydrotherapy pool was disallowed. In JR, the annual sum of £1,925.00 was instead allowed on the basis that the injured person would have 35 visits to a local pool each year. This equates to c.67% attendance each week.

The Judge, Davis J, found:

“The final issue in relation to accommodation is whether a hydrotherapy pool should be provided at JR’s home. It would not be reasonable or proportionate. JR likes the water and is relaxed by it. He would enjoy having his own pool. But this is a case in which I can and should take an approach similar to that which I took in HS v Lancashire Teaching Hospitals [2015] EWHC 1376 QB, namely make provision for the cost of visiting a local hydrotherapy pool (of which there are several) on a regular basis.

In JR, the Judge was not persuaded to allow the costs of a hydrotherapy pool. This case highlights the challenges that injured people can have in recovering the cost.

An important point of good practice is to plead the claim in the alternative. In the event that the claim for a hydrotherapy pool and the associated costs fails, the injured person should be able to seek the additional cost of care, travel, aids and equipment, pool hire and insurance which will likely arise if using a local pool.

These costs can easily be quantifiable if the injured person has in fact been hiring a local pool. If there is no such past evidence, the physiotherapist will quantify these costs based upon their experience of arranging such provision for injured people.

Evidence and mitigation of loss

The starting point should be the frequent use of a hydrotherapy pool if the injured person has access to one. If the injured person is frequently travelling to use a hydrotherapy pool and is reporting benefit from doing so, the argument becomes much stronger.

There is a requirement for medical and physiotherapy evidence to underpin the importance of hydrotherapy. This could be, for example, to assist with controlling spasms, to prevent contractures or to provide cardiovascular exercise.

Defendant teams will often assert that it is unreasonable for the injured person to have a hydrotherapy pool in their garden on the basis that they can travel to one close by. The Courts can be persuaded by these arguments. The issues that need to be weighed up are as follows:

  • The distance from the injured person’s home to the hydrotherapy pool;
  • The availability of the hydrotherapy pool;
  • The number of times per month that the injured person needs to reasonably use the hydrotherapy pool;
  • The cost of arranging for the injured person to go to the hydrotherapy pool;
  • Whether there are adequate changing facilities at the premises of a local pool;
  • Whether there is access to a hoist in a local pool if required;
  • Whether the water is at an appropriate temperature;
  • Whether the pool is too noisy;
  • Whether the pool can be hired.

If the injured person has a need for hydrotherapy once a month, it will be a steep uphill battle to obtain damages to install and subsequently maintain a hydrotherapy pool at home.

The claim

If a hydrotherapy pool is sought, the following expenses will need to be born in mind by the lawyers:

  • The actual pool and any replacement cost;
  • The capital cost, and the subsequent maintenance costs, of building or extending the property to house the pool;
  • The additional equipment, running and maintenance costs such as heating and treatment of the pool.

In summary, although it is certainly possible to obtain the costs associated with a hydrotherapy pool, it is probably fair to say that it is one of the most challenging heads of loss to prove and the need for specialist lawyers and evidence is vital.

David Withers is a Partner of Irwin Mitchell LLP and a Solicitor-Advocate, leading a team specialising in serious injury cases in excess of £250,000.

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