Serious Injury Claims James Arrowsmith Browne Jacobson LLP Session - - PowerPoint PPT Presentation

Serious Injury Claims

James Arrowsmith Browne Jacobson LLP

Session Objectives

A brief introduction to how we:

• Make good early reserving decisions
• Identify reserving risks
• S

elect tactical options to suit the case

• Deal with problem opponents
• Build a case from day 1 to get the best outcomes

The Ogden effect

• Female, age 30:

Discount Rate 2.5% Minus 0.75% % change Care/ CM £250k pa £7.7 million £19.2 million + 150% Earnings £30k pa £0.6 million £1.1 million + 83%

Real Life

• PH’ s car collided with a bus this morning.
• S

ince his call to the broker, nobody has managed to contact him.

• It looks like a serious incident, and so we need a

reserve for Monday!

Initial investigations

Injuries

Information comes in that:

• The bus driver has crush inj uries to both legs.
• There were 15 passengers on the bus of which 5

were admitted to hospital, one overnight

• A child from the car is in ITU with a head inj ury
• Their mother (a passenger in the car) was taken

away on a spinal board

Traumatic brain injury

Mechanism of injury

• S

udden external trauma causing damage to brain tissue = Traumatic brain inj ury (TBI)

• Open head inj ury –

skull/ brain tissue penetrated

• Closed head inj ury –

may have been a skull fracture but no penetration of brain tissue

Mechanism of injury

• Primary brain damage –
• ccurs at time of inj ury:

– Haematomas, haemorrhages, bruising – Diffuse Axonal Inj ury

• S

econdary brain damage

– Oedema, hypoxia, ischemia, pressure/ herniat ion – the aftermath of the initial inj ury and results in a large proportion of deaths/ long term complications (immediate treatment key)

Severity of brain damage

Early indicators:

• Characteristics of accident or assault
• MRI/ CT scan undertaken?

Are they on ITU?

• Unconsciousness - depth and length
• GCS

Later on:

• Results of brain scans and functional tests
• Post traumatic amnesia
• GCS

Postconcussional Syndrome

ICD 10 – A: syndrome that occurs following head trauma (usually sufficiently severe to result in loss of consciousness) and includes a number of disparate symptoms such as headache, dizziness, fatigue, irritability, difficulty in concentration and performing mental tasks, impairment of memory, insomnia, and reduced tolerance to stress, emotional excitement,

• r alcohol.

Core Evidence

• Neurologist –

the nature of the brain inj ury sustained

• Neuropsychologist –

impact on psychological processes such as emotion, perception, memory, language, intelligence and behaviour

• Care expert –

will assess and cost reasonable care needs (and, ideally, Occupational Therapy)

Further Evidence

• Neuropsychiatrist –

mental disorders related to diseases of the nervous system.

• Psychiatrist –

pure psychiatric disorders

• Accommodation expert
• Employment expert

Amputations

Overview

• Immediate loss of limb, or risk of loss
• Upper Limb Amputation:

– Hand – Above/ below elbow

• Lower limb Amputation.

– Above/ below knee

Risk Factors

(a) Infection/ Reduction; (b) S welling; (c) S ensory loss or change; (d) Pain (e) Tumours (usually stemming from nerve damage); (f) Overuse of remaining limbs; (g) Disturbance in gait; (h) Further inj ury.

Impact

• Affects on daily living can be life changing:-

(a) S elf-Care; (b) Mobility; (c) Employment. (d) Accommodation

Rehabilitation

Rehabilitation

Discount rate: 2.5%

• 0.75%
• Prosthetic

£300,000 £545,000 Potential S avings:

• Earnings

£450,000 £762,000

• Accommodation/ adaptation £150,000

£150,000

• Activities/ leisure

£ 25,000 £45,000

• Alternative prosthetic

£ 25,000 £45,000

Spinal Injuries

Spinal and back injuries

Level of Spinal Cord Injury

What decides quantum?

• Medical treatment –

ventilation, bladder/ bowel.

• Therapy –

pressure sore management, physio.

• Care –

transfers, turning

• Mobility –

wheelchair, driving, adapted vehicle

• S

elf care – hygiene, nutrition

• Accommodation –

bungalow, automation, facilities

• S
• cial/ recreational
• Earnings

Extracting Information

• Investigation –

press stories, employer (in EL), local knowledge.

• Cooperation –

early communication

• Rehabilitation –

INA and insist on access to rehab reports.

• S

trategy – use of court process, ADR process, litigation, management of interim payments.

Chronic Pain

Which condition is it?

• Chronic Pain (any pain lasting over 6 months)
• Neurogenic pain
• Complex Regional Pain syndrome
• Fibromyalgia
• S
• matoform conditions
• Factitious Disorder
• Malingering
• Hypochondriasis

Identifying the condition

• Medical history and risk factors
• Clinical Investigation–

radiology, nerve conduction studies

• Explore the simple explanations

– orthopaedic, neurology

• Cautious exploration of non-organic pain

– psychiatry, rheumatology

• In patient investigation, monitoring and treatment

Real Pain or Real Fraud?

• Deliberate exaggeration, unconscious exaggeration
• r a pain condition?
• Look for evidence to rule claim in as well as out
• Records can be critical
• S
• cial media investigation (third party feeds too)
• S

urveillance (multiple, good recordings are needed)

• Explore all the evidence with your experts

Secondary Victims

Secondary Victims

The unexpected claim

• You receive a letter of claim from solicitors for the

grandparents/ parents.

• At the hospital they saw their daughter/ grandson in

pain and with visible inj uries.

• They remained while treatment was carried out

and supported their daughter while complications arose in their grandson’ s treatment

• They have continued to care for the grandson.
• Both allege psychiatric inj ury.

Primary and secondary victims

• Primary victim:

– “ Within the zone of foreseeable physical harm” – Can recover for psychiatric inj ury

• S

econdary victim:

– “ S uffers psychiatric inj ury through seeing hearing or learning of physical harm tortiously inflicted on

• thers”

– Must satisfy additional control mechanisms

The control mechanisms

• Close tie of love and affection
• Proximity in time and space (Event or immediate

aftermath)

• Direct perception
• S

hock– sudden assault on the nervous system

• Causation
• Diagnosable psychiatric disorder

Ronayne v Liverpool Women's Hospital

• S

hocking event – exceptional, sudden, horrifying (obj ective standard)

• Expect unpleasant scenes in hospital
• S

udden appreciation – not a series of events

So what do we do?

• Deny legal basis of claim
• Highlight risks/ attack funding
• On issue apply for strike out
• Utilise exception to QOCS

for strike out

Wrap up

Tactical toolkit

• How strong is my case?
• Collaborative or adversarial approach?
• Then you can begin to formulate a strategy, eg:

rehab evidential control robust fraud

Investigation cycle

Range of possible claims/ inj uries Range of associated risks Information needed to narrow the ranges How to obtain the information

S trategy

Questions

Contact us

James Arrowsmith Partner t: 0121 237 3981 e: j ames.arrowsmith@ brownej acobson.com James Arrowsmith @ brownej acobson