The role of a case manager is to manage a “collaborative process of assessment, planning, facilitation, care co-ordination, evaluation and advocacy for options and services to meet an individual’s and family’s comprehensive health needs through communication and available resources to promote quality cost effective outcomes[1].”

The role of a Claimant solicitor in the litigation process is to represent the needs of the injured person and to manage all phases of the litigation towards settlement or trial.

It is a process of collating and presenting the evidence that is required to ensure that the award agreed between the parties or made by the Court is fair and correct.

In the context of a serious injury claim, the roles of the case manager and solicitor accordingly overlap considerably and it is to an injured person’s benefit when that relationship is open, cooperative and productive, placing the injured person at the centre.

It is further increasingly the case that Claimant and Defendant solicitors work cooperatively in serious injury cases to achieve the best outcome for injured people through rehabilitation and the litigation process, and the case manager has a central role in this relationship.

Sofie Toft

The Aim of Compensation and the Role of the Case Manager

The aim of compensation is to restore an injured person to the position that they would have been in had their accident not occurred.  In the vast majority of serious injury cases this is not something that it is possible to do and the effects of an injury cannot simply be reversed. Nevertheless, the principle remains the core of any award of compensation made by a Court.

That award will be based on the financial valuation of the therapies, care package, equipment and accommodation that can be put in place to ensure that an injured person’s life best resembles the life they would have had had their accident not occurred.

This is in turn a highly individualised assessment. It is an assessment of the life an injured person enjoyed before their accident, of their preferences, their family and of their lifestyle, and in turn those interventions that can be shown practically and in evidence, to work to best facilitate quality of life and independence. If the interventions cannot be shown to work for an individual, irrespective of best intentions, it will not be accounted for by the Court in a financial settlement.

In this respect, the role of the rehabilitation and the care package that a case manager puts in place for an injured person in the context of litigation is two-fold.

The package will work to assist a Claimant to increase independence and quality of life, whilst simultaneously providing the concrete evidence that is required by a Court as to what a Claimant’s needs really are and how those needs are best met. In turn, where that evidence is provided, the relationship becomes reciprocal as the evidence is the key to a solicitor accessing the interim payments and funding required to facilitate the case manager’s recommendations.

Communication, Goal Setting and Disclosure

Stephanie Edwards

For solicitors and case managers both, each case is as radically different as our individual clients and each raise different issues and challenges. It is the sad reality that our clients are almost invariably going through a period of crisis and learning to adapt to a life changing injury.

To deal with these challenges, the key to a productive relationship between case managers and solicitors is open communication and accessibility.

The case manager is an integral part of the team:

  • They will have a good relationship with the Claimant and the Claimant’s family as they will often have the most contact with them outside of the therapy team and will have contact with the Claimant in their home environment.
  • They will have a good knowledge of how the multi-disciplinary team are working together and any changes that are needed.
  • They will have a good knowledge of how the rehabilitation is going, of the challenges and issues faced by the Claimant, of what works and what does not, and what a Claimant needs.

The case manager is at the ‘front line’ in any case. They hold a wealth of information which is useful for the Claimant’s litigation team to tap into in respect of ensuring the care and rehabilitation that has been put in place is working well and also to assist the solicitor to plan the litigation.

The injured person will be best supported by the case manager and litigation team regularly exchanging information. If communication is slow or delayed, the whole process can break down.

By way of example, it is a fairly frequent issue in these types of cases that an injured person struggles or fails to engage with therapies for one reason or another. In other cases, clients have difficult issues in their lives which may be amplified following their injury.

Where a Claimant had a fractious relationship with their family, this may deteriorate following an injury. We see cases in which a client may have used drugs or alcohol recreationally before the accident but which, following their injury, becomes a much more significant issue. Issues like this need to be tackled jointly in the litigation and in case management and they are invariably better understood by case managers than solicitors.

It may be that alternative interventions are required to tackle an issue such as brain injury education to assist the injured person and their family to engage with therapies. It may be that psychological support or even drug rehabilitation is required to tackle an issue with drug use.

Interventions like these require planning and funding. In order to obtain funding, the solicitors need to be fully aware and putting in place the necessary evidence and applications for an interim payment. Similarly, a full understanding of the issues is central to a solicitor’s planning of the litigation.

In a case where family relationships are increasingly difficult, it may well not be appropriate or sustainable to continue to factor in familial care of the injured person in the eventual settlement.

It may be that a contingency in the settlement for family break-down in the future, or increased support from a paid care team, is required. In order to achieve this, the expert and witness evidence in the legal case will need to be gathered and the case will need to be pleaded along those lines.

This can only happen where there is good and full communication between solicitor and case manager.

In facilitating full disclosure and open communication, it is worth considering:

  • Multi-disciplinary team meetings are a fantastic opportunity for the litigation team to stay up to date in respect of the therapy package and to get a better understanding of dynamics and the challenges faced by the injured person. A case manager that is willing to include the litigation team in such meetings is invaluable. In some cases, particularly those involving large expenditure for care and rehabilitation, the attendance of both Claimant and Defendant lawyers may well be beneficial.
  • Case managers and solicitors being able to access each other when needed is vital. It is wise at the beginning of a case to figure out how each person prefers to communicate in the circumstances of the particular case – whether that be by email or picking up the phone.
  • Formalities around documentation can slow the process down unnecessarily. If something important has happened during the period of case management, the litigation team should be updated as soon as possible rather than waiting until the case management update is formally prepared.
  • Full and open disclosure is important. It can be tempting to ‘protect’ a client by underemphasising their failure to engage or an issue that has arisen in their personal life. This is particularly the case where information may have come to a case manager in circumstances where a Claimant is speaking in confidence and on the back of a relationship of trust with their case manager. This, ultimately, does not serve to ensure that the appropriate support is in place and that the litigation is being planned to deal with that challenge.
  • Solicitors and Judges are not clinicians. Documentation around interventions and case management should not be ‘sanitised’ and overly clinical, simply setting out numbers of physiotherapy sessions and increases in abduction / flexion of a particular limb in therapy. Solicitors and Judges are ultimately interested in the functional impact of therapies and interventions, and in some circumstances, will need to be assisted to understand this within the clinical information provided.
  • Based on the knowledge and relationship a case manager has with the Claimant, a solicitor may call on a case manager to assist with the formal evidence in a case. For example, a case manager might be asked to attend a medico-legal expert appointment to provide a full view on the circumstances of a Claimant’s injuries and needs in the context where they or their family would struggle to do so. Similarly, a solicitor may ask a case manager to assist by providing a witness statement in the case in order to adduce as evidence their knowledge and understanding of the case and the Claimant.

Funding rehabilitation: Evidence and costs estimates

In order that an injured person’s needs can be addressed, and challenges met as they arise in a given package, funds will be required.

Funding for care and rehabilitation packages is accessed in a legal case via interim payments, i.e. early payments out of the eventual compensation.

Insofar as a need is properly evidenced and reasonably required, the Claimant will be entitled to it and it will be fully recoverable, thus increasing the value of the final award.

Where the necessary evidence is not provided for a particular intervention, it is possible for a Court to decide that the expense was not reasonably incurred and to not allow for it to be recovered, decreasing the award.

To protect the Claimant’s best interests and eventual compensation it is accordingly central that solicitors have a full understanding of the funds that are being spent and the justification for the same.

Documentary evidence such as thorough therapy and case management records, are central here. Further, where there is significant expenditure occurring, it may be necessary for a medico-legal expert involved in the case to review the decision and provide their views.

It is frequently the case that medico-legal experts have six, nine or 12-month waiting lists and accordingly proper planning of major spending decisions needs to be done. In this regard, solicitors need to be on notice of the long-term future plan, likely expenditure and costs estimates.

Litigation does not move quickly and it will be a frequent frustration to many case managers that the recommendations that they have made may take many months to be funded. Whilst Claimant and Defendant solicitors are often increasingly working on a collaborative basis to meet a Claimant’s needs, it is not always the case that the parties are agreed about major expenditure.

There are frequently disagreements about whether a Claimant’s needs are best met in the community or whether they would be well served by an expensive in-patient package of rehabilitation, for example. In those cases, detailed expert, witness and documentary evidence of a Claimant’s needs is required which can take months to put together.

It may ultimately be the case that the matter will need to be put before a judge to decide and this process, again, can take a period of months. In order to avoid a care or rehabilitation package grinding to a halt, the earlier a solicitor is put on notice of funding requirements and potential issues, the better able they are to manage and expedite the process.

Dealing with partial recovery: Contributory negligence and pre morbid difficulties

It is unfortunately frequently the case that an injured person will not, at the settlement of their case, be entitled to the full award of compensation that the Court would otherwise have made available to them.

Case managers and solicitors are frequently confronted with Claimants who had a range of difficulties prior to their accident which increase their needs but cannot be compensated through their case. For example, a Claimant may have had arthritis prior to their accident which remains an issue following the accident. A Defendant insurer will not be responsible to compensate a Claimant for issues they would have had in any event and this leads to a significant issue for case managers to deal with.

A case manager will wish to see an injured person in the round whilst recognising that physiotherapy for the Claimant’s pre-existing arthritis, whilst maximising their function, may not be recovered and will decrease their award.

Perhaps even more commonly, the issue of contributory negligence arises. Where a Claimant has been contributory negligent, i.e. partially to blame for their accident, they will be assessed as being entitled to only a proportion of the value of the case.

For example, in cases where a Claimant has failed to wear a seatbelt or stepped into the path of a speeding vehicle, they may be assessed as being entitled to only 75% or 50% or even 30% of their compensation, depending on the circumstances of the case.

If a Claimant is assessed as being 50% contributory negligent for their accident, they will only derive 50% of their compensation. This will necessarily have an effect on how a rehabilitation and care package is managed.

In assessing compensation, a court is required to come to a valuation of a Claimant’s claim based on the extent of their injuries and their needs. Once they have reached that valuation, they will make a deduction from the total value of the case to take into account contributory negligence.

A Court is not entitled to take into account the effect of contributory negligence beforecoming to a valuation in the case. For example, it may be assessed that a Claimant’s best interests are that they live in the community and require a 24 hour care package with a full complement of therapies to do so.

In reality, it may be the case that on a 50% recovery in a case, a Claimant and their family will need to make some very difficult decisions about what they can afford and how best they meet a Claimant’s needs with the compensation provided.

This may mean, for example, that while the experts in a case have recommended weekly physiotherapy for a period of years, a Claimant may decide that those funds are best spent meeting their care needs. In these circumstances, the Court is not entitled to second guess what a Claimant will do in reality on the settlement of their case and compensate them along those lines. This would, in effect, lead to a double discounting as a result of contributory negligence.

Because the law of compensation works in this way, as artificial as it may seem, challenges arise in care packages and for case managers making recommendations.

Even in cases where a Claimant will face a discount from their compensation due to contributory negligence, their solicitors will still require evidence of their needs, and how those needs are best met, to meet the burden set by the Court to ensure a maximum award can be given.

This may mean for example that during the life time of a case, a solicitor will put in place the ‘ideal package’ of care and rehabilitation with the aim of showing that this is what the Claimant needs. They will do this knowing full well that, on the settlement of the case, aspects of the package may need to be cut away and other arrangements made. In other circumstances, this is not possible and, particularly in cases where there is a very significant deduction to be made, early consideration must be made with a view to preserving the eventual compensation.

For example, it may be decided in all of the circumstances that where an injured person is deriving limited benefit from an expensive therapy, vis-à-vis significant benefit from another therapy, only the latter should be funded. Similarly, it may be that some therapies will be required to be funded through the NHS though provision of this may be more limited and there may be a long waiting list.

All of these considerations require a balancing act by solicitors and case managers, negotiating the line between ensuring that a Claimant is properly looked after and rehabilitated whilst also preserving the final award.

Whilst it is ultimately a matter for the Claimant and their solicitors (and in the case of protected parties, the Court of Protection Financial Deputy) to make a decision about what expenditure should or should not be incurred, those decisions can only be made on the basis of an informed understanding of the injured person’s circumstances, progress and prognosis.

A solicitor will be entirely reliant upon a case manager (and in turn medico legal experts) to determine the real and practical valueof expenditure e.g. for a certain therapy, to a Claimant.

The rigours of litigation

Litigation can be a long and stressful process for an injured person who will be coping with potentially life changing injuries, alongside the medico legal process.

It will work significantly better for the injured person when a collaborative approach is taken between the parties, alongside the case manager and a multidisciplinary team, putting the injured person at the centre of the process alongside an understanding of their needs and how they are coping.

It is furthermore the case that case managers frequently build relationships of trust and confidence with Claimants who will rely upon them for reassurance and support. Whilst perhaps not strictly within a case manager’s role, many solicitors will welcome and value this support, particularly where a Claimant may lack a support network otherwise.

Conclusion

The injured person is, and quite rightly should be, at the centre of everything that we, as practitioners working with those who have suffered serious injury, do.

Only by working together as part of a multi-disciplinary team can we provide the best service to our clients and ensure that they are able to benefit from the vital rehabilitation which a personal injury claim can provide. Communication is central to that process.

Sophie and Steph are serious injury solicitors at Irwin Mitchell’s London office.

[1]https://www.cmsuk.org/case-management/what-is-case-management