Serious Injury Claims

James Arrowsmith Browne Jacobson LLP

Session Objectives

A brief introduction to how we: • Make good early reserving decisions • Identify reserving risks • Select 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.

• Since 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 injuries 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 injury • Their mother (a passenger in the car) was taken

away on a spinal board

Traumatic brain injury

Mechanism of injury

• Sudden external trauma causing damage to brain tissue = Traumatic brain injury (TBI)

• Open head injury – skull/brain tissue penetrated • Closed head injury – may have been a skull fracture

but no penetration of brain tissue

Mechanism of injury

• Primary brain damage – occurs at time of injury: – Haematomas, haemorrhages, bruising – Diffuse Axonal Injury

• Secondary brain damage

– Oedema, hypoxia, ischemia, pressure/herniation – the aftermath of the initial injury 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 injury 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) Swelling; (c) Sensory loss or change; (d) Pain (e) Tumours (usually stemming from nerve damage); (f) Overuse of remaining limbs; (g) Disturbance in gait; (h) Further injury.

Impact

• Affects on daily living can be life changing:- (a) Self-Care; (b) Mobility; (c) Employment. (d) Accommodation

Rehabilitation

Rehabilitation

Discount rate: 2.5% -0.75% • Prosthetic £300,000 £545,000 Potential Savings: • 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 • Self care – hygiene, nutrition • Accommodation – bungalow, automation, facilities • Social/recreational • Earnings

Extracting Information

• Investigation – press stories, employer (in EL), local knowledge.

• Cooperation – early communication • Rehabilitation – INA and insist on access to rehab

reports. • Strategy – 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 • Somatoform 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 • Social media investigation (third party feeds too) • Surveillance (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 injuries.

• 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 injury.

Primary and secondary victims

• Primary victim: – “Within the zone of foreseeable physical harm” – Can recover for psychiatric injury

• Secondary victim: – “Suffers psychiatric injury 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 • Shock– sudden assault on the nervous system • Causation • Diagnosable psychiatric disorder

Ronayne v Liverpool Women's Hospital • Shocking event – exceptional, sudden, horrifying

(objective standard) • Expect unpleasant scenes in hospital • Sudden 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/injuries

Range of associated risks

Information needed to narrow the

ranges

How to obtain the information

Strategy

Questions

Contact us

James Arrowsmith Partner t: 0121 237 3981 e: james.arrowsmith@brownejacobson.com James Arrowsmith @brownejacobson