REHABILITATION WITHIN THE CONTEXT OF A PERSONAL INJURY CLAIM

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1 REHABILITATION WITHIN THE CONTEXT OF A PERSONAL INJURY CLAIM Personal Injury Jonathan Betts, Partner, Irwin Mitchell, Manchester

2 Good Personal Injury Lawyers are not:

3 Irwin Mitchell s Policy on Rehabilitation in PI Cases It is a requirement that the question of rehabilitation should be considered in every single case. AKA the GATF

4 My clients journey

5 Definition The purpose of rehabilitation is to restore an injured person to as productive and as independent a lifestyle as possible through the use of medical, functional and vocational intervention SO how can we as PI lawyers do this?

6 How can a Claimant Access Rehab? Interim payments via compensation claim the best way BUT fault based and hurdles to overcome Rehabilitation Code Funding Private Health Insurance Policies Accessing Statutory Services

7 Statutory Funding - IM Rehabilitation Research Counting the cost of the rehabilitation Postcode lottery for road crash victims (Feb 13) Builds a national picture of use and demand for rehabilitation services across England and Wales Roundtable with rehab healthcare specialists Focusing on those with serious injuries (SCI, ABI and Polytrauma cases) Considers experiences of those in the system & makes recommendations as to what can be done to improve access to rehab nationally

8 IM Research The Headlines Rehabilitation already Cinderella Service prior to funding cuts Limited access to rehabilitation, exacerbated by Postcode Lottery fourfold difference in the interquartile range between reported rate of inpatient rehab services for head injuries at PCT level Those at greatest risk are not long term hospital admissions, nor those with minor injuries, but those with life changing injuries, discharged into the community with long term needs and subject to patchwork rehab

9 IM Research - The Headlines Poor access to rehabilitation services can cost more in the long run than the actual costs of the necessary rehab services Poorer recovery prospects, reduction in patients likelihood of returning to work or playing active role in society Not only health, but job, home, mobility and family future at risk AND the added ongoing pressure to the NHS

10 IM Research -The Headlines Early rehab = potential savings of m per ABI patient Equates to 120m over lifetime of people suffering ABI in RTA in 2011 if only 5% receive intense co-ordinated rehab Savings from support costs can offset cost of (early) rehab for ABI patients in (initial) 1-2 yrs

11 IM Research -The Recommendations Need faster, co-ordinated holistic rehabilitation across the board to improve functional recovery prospects by: 1. Recording Rehabilitation data in consistent way 2. Identify Best Practice and measure benefits to secure additional funding 3. Calculate life long rehabilitation needs of patients and pool funding to deliver through single body 4. Improve care for people once they are back at home through more specialist rehab services

12 IM Research Conclusion Day in and day out we see the benefits of early access to rehabilitation. But for those who we can t help, this report demonstrates how vital it is that everyone has access to quality care as early as possible in their recovery. It s good for the patients, and it s good for the NHS. Colin Ettinger, Partner, Irwin Mitchell

13 Those without access to Interim payments or rehab code funding: Do individuals have access to a Private Health Policy (efficacy of policies in rehab setting) OR a Critical Illness type policy? Are individuals getting what they are entitled to is there a Public Law angle here? For those with potential damages claims use of Irwin Mitchell Client Liaison Managers

14 Damages Claims - The Aim of Damages (1) Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation or damages you should, as nearly as possible, get that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation. Lord Blackburn in Livingstone v Rawyards Coal Company ( 1880) 5 Appeal Cases 25

15 Damages Claims - The Aim of Damages (2) The Aim of Damages (2) The task of the Court in assessing damages for personal injury is to arrive at a lump sum which represents, as nearly as possible, full compensation for the injury which the Plaintiff has suffered Lord Lloyd in Wells v Wells AC345

16 Rehabilitation through a Damages Claim - Claimant s Choice (1) Claimant s Choice (1) there is a difference between what a Claimant can establish as reasonable in the circumstances and what a Judge objectively concludes is in the best interests of the Claimant. In this context, paternalism does not replace the right of a Claimant, or those with responsibility for the Claimant, to make a reasonable choice. Pill LJ Sowden v Lodge Court of Appeal

17 Rehabilitation through a Damages Claim - Claimant s Choice (2) We can see no reason in policy or principle which requires us to hold that a Claimant who wishes to opt for self funding and damages in preference to reliance on statutory obligations of a public authority should not be entitled to do so as a matter of right. Dyson LJ Peters v East Midlands SHA (2009)

18 Rehabilitation through a Damages Claim - Claimants Choice (3) In an action for damages for personal injury, there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of the facilities under the National Health Service Act Section 2(4) Law Reform (Personal Injuries) Act 1948

19 Rehabilitation through a Damages Claim Potential Hurdles If voluntary interim payment not forthcoming Application to the Court (post issue) and Court is satisfied that: (a) the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant; or (b) the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed; (c) it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment The Eeles Judgement and Periodical Payment Orders

20 Rehabilitation Code - Duty of the Claimant s Lawyer It should be the duty of every Claimant s solicitor to consider, from the earliest practical stage, and in consultation with the Claimant and/or the Claimant s family, whether it is likely or possible that early intervention, rehabilitation or medical treatment would improve their present and/or long term physical or mental wellbeing. This duty is ongoing through the life of the case but is of most important in the early stages The Rehabilitation Code

21 The Pre Action Protocol View The Claimant or the Defendant, or both, shall consider, as early as possible, whether the Claimant has needs that could be met by rehabilitation treatment or other measures. Pre-Action Protocol

22 Rehabilitation Code Funding Engagement with Defendant Insurers / Solicitors What Can I do to make my client s life better NOW? Meet your client immediately and understand needs! Contact Defendants Informally - Just tell them what your client needs! Contact Defendants Formally the letter of Claim, but when? Rehabilitation Code v- Interim Payments Public Law Team intervention; Welfare Capacity/best interest issues and Statutory Provision

23 Rehabilitation Code Funding what s the deal? Work Support Accommodation Transport Equipment Therapies Etc

24 Rehabilitation Code Funding what s the deal? Immediate Assistance Time Constraints for funding decisions Funding Constraints Perceived Interference Transparency TRUST!

25 Rehabilitation Process Due Diligence on your client Resolve the funding issues Appointment of a case manager Case Manager coordinated rehabilitation plan to consider Claimants best interests and how met That means NHS v Private considerations Considering any medico-legal assessment /report Considering all clinical therapeutic intervention to improve quality of life Do it!

26 Guide to Best Practice at the Interface between rehabilitation and the medico legal process Creation of a protocol to ensure proper channels of communication Ensure primacy of responsibility rests with treating clinician Enabling Claimant to make informed decision (subject to capacity)

27 Protocol Claimants Undergoing NHS Treatment Recommendations made by medico-legal expert refer back to NHS for consideration Independent assessment of needs should be in consultation with NHS specialist Additional or alternative treatment will this be in the best interests of the Claimant? Funding for rehab solicitor to advise NHS team

28 Clinical Case Management An intervention to address the overall maintenance of the client s physical and social environment, its goals include facilitating physical survival and personal growth, encouraging community participation and assisting in recovery from or adaptation to a disabling condition

29 Role of Case Manager Advocate Communicator Co-ordinator Protector Manager Social Worker Counsellor Most important witness in the damages claim

30 Role of the Case Manager To touch on every area of our clients and their families lives including: Vocational rehabilitation services inc liaison with employer Arrange clinical input from OT, physio/hydrotherapy, psychosexual Accommodation transport and environmental controls Liaise with statutory services Care / Support worker input

31 Making a Difference

32 LASPO / Jackson Reforms will they have any impact on Rehabilitation of Claimants? Abolition of Legal Aid for all new cases save baby BI cases Non-recoverability of CFA Success Fees and ATE Premiums from the Defendants There will be an end to the recoverability of success fees and ATE premiums where the CFA / policy is entered on/after 1st April 2013 Claimant s have to pay these from their damages! Solicitors now competing on cost and quality cheapest deal? SF on costs capped-25% of past losses & General Damages Is this a disincentive for Claimants to secure interim funds for housing, rehabilitation, aids, care and assistance etc.? (i.e increase past losses) BUT do get 10% increase in general damages

33 LASPO Costs Budgeting COSTS BUDGETING cases issued post 1/4/14 Prospective assessment of all costs File budget within 28 days of defence being filed Failure to file budget means recover court fee only! Limitation on experts.and generally on amount of work to be undertaken? Reluctance of Solicitors to issue/ force IP for rehab? BUT Defendants likely to force you to issue claim

34 Case Study Robin Parker 52 at time of accident RTA end November 2009 pedestrian on crossing with green man showing Discharged March 2010 transtibial amputee Instructions received shortly thereafter Horrendous post discharge position We built close and trusting relationship with Defendant insurers and solicitors

35 Specialist Lawyers Headway handbook APIL accredited Chambers/Legal 500 Reputation Track record Remember the GATF

36 And to show we really are committed: "Judges described this winning initiative as a 'truly good news story about collaborative working' and deemed it excellent in terms of solicitors getting information to the insurer with the sole purpose of assisting and benefiting the injured individuals at the heart of the process.

37 Thankyou Telephone /

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