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 £7.7 million £19.2 million + 150% pa 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 – occurs 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, or 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 ocial/ 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 omatoform 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 or a pain condition? • Look for evidence to rule claim in as well as out • Records can be critical • S ocial 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 others” – 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 How to obtain possible the information claims/ inj uries S trategy Information needed to Range of narrow the associated risks ranges
Questions
Contact us James Arrowsmith Partner t: 0121 237 3981 e: j ames.arrowsmith@ brownej acobson.com James Arrowsmith @ brownej acobson
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