Why Occupational Therapists make excellent Expert Witnesses!

Transcription

1 Why Occupational Therapists make excellent Expert Witnesses! Jessica Thurston Medico-Legal Services Manager & Senior Casework Supervisor Somek & Associates

2 Why Occupational Therapists make excellent Expert Witnesses! Jessica Thurston, 27 th November 2014

3 Learning Outcomes 1) To understand the role of the Expert Witness in clinical negligence & personal injury litigation 2) To understand what the occupational therapy Expert Witness uniquely brings to the assessment of damages

4 What is an Expert Witness? Someone who has appropriate qualifications, knowledge and significant clinical experience) and who assists the process of litigation by providing opinion evidence concerning: Liability Quantum: The value of damages The duty of the expert witness under the Civil Procedure Rules (CPR)is to remain entirely objective and provide evidence for the benefit of the court. Their role is not to act as advocate for either the Claimant or Defendant.

5 Occupational Therapy Experts role in assessing damages / quantum How is an award for damages calculated? General damages non monetary aspects/ pain & suffering & loss of amenity Special damages quantifiable monetary losses Experts are required to provide expert opinion regarding those losses Care Equipment/accommodation adaptations Medical / Therapeutic interventions Other disability related costs e.g. holidays, transportation

6 Aim of Damages: Where an 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

7 Case Study: JM Dob: 08/09/86 (23 years of age at time of material event) Involved in RTA. Liability admitted in full. Complex degloving of left ankle, for which he underwent ORIF, re-vascularisation and arterial grafting. Underwent a left below knee amputation on 14/04/13. PMH: Nil of significance

8 Letter of Instruction 1) Instructed by Defendant (representing insurance company) on 24/04/13. 2) Instructed to provide a report detailing the Claimant s Care and Occupational Therapy needs. 3) Asked to consider and respond to the Claimant s care & occupational therapy evidence that he requires: Care immediately on case settlement at the level of 28 hours per week and a live in carer by 65 years of age A Gainsborough bath An electric scooter 6 sessions of occupational therapy per annum indefinitely Increased costs for holidays, home decorating, gardening, transportation

9 So what do you need to know to do this? Pre-existing lifestyle/ future lifestyle Pre-existing injuries / condition Current condition/lifestyle Difference between the two

10 Assessment: Pre-injury lifestyle Slovakian national At time of material event was undertaking degree in sports & coaching Extremely active & competitive Intended to pursue career as tennis coach for elite players Lived in shared house, privately rented Lifestyle devoted to training & competitions

11 Assessment: Undertaken at home on 10/08/13 Functional observational objective assessment of activities of daily living Physical assessment Social status (family, educational and work ambitions) Environmental assessment Interviewing of Claimant (subjective) Considering the current role of equipment (not bound by statutory service provision) Considering the impact upon all activities of daily living e.g. leisure and social (holistic approach) OT s are uniquely placed to consider all of the above!

12 Assessment Findings: Residual limb No problems assessed in respect of contralateral limb or upper limbs. No significant issue with phantom limb pain Energy levels: no impact described No medication required Independent in all ADL s Mobility: Outstanding Stairs: negotiates two at a time (26 risers in 6 seconds)

13 General Considerations & Prognosis Consideration of medical evidence: He will remain very fit into his seventies and possibly beyond He remains an exceptionally fit man No care requirements until 80 years of age Will retain high level of mobility into old age Consideration of prosthetic evidence: 16 prostheses recommended Interpretation in the light of my own assessment findings, witness statements & clinical experience:

14 Past analysis of care requirements: This is achieved by: Interview with Claimant Use of medical, therapy & prosthetic records Use of Case Management records 4 past care periods were identified A breakdown was provided for the different care requirements the Claimant had between the date of the material event and the date of my assessment A rate (National Joint Council/ Spinal Point 8) was used to value care and reflected my understanding of when care was provided I used a standard rate to reflect that care provided was at a low level and comprised primarily assistance of a domestic nature. My counterpart used a fully aggregated rate, implying night time care was a requirement

15 Future analysis of immediate care requirements: Claimant s Expert Opinion Defendant s Expert Opinion 28 hours per week of care No breakdown for care allowed Will need it when he takes the prosthesis off He may get tired Will need help with vacuum cleaning No care needs identified Wears prosthesis throughout day even through occasional soreness Does not use walking aids can carry Can mobilise extended distances, drive and cycle and can undertaken own grocery shopping Excellent dynamic standing balance contralateral limb extremely strong No reported change in fatigue levels

16 Long term care requirements: Claimant s Expert Opinion Defendant s Expert Opinion Will need live in care Will be unable to transfer Will not require live in care Will remain independent in transfers Medical evidence suggests it as unlikely care will be required In event of deterioration, may have increased propensity for back pain, fatigue Allowed 4 hours per week of domestic support (cleaning, bed making & laundry) Allowed online grocery shopping costs In later life, may require supervision with morning personal care regime

17 Equipment recommendations Claimant s Expert Opinion Defendant s Expert Opinion Self propelling, lightweight wheelchair Agree need and cost but disagreed model and replace met period based on expected usage pattern Electric scooter Disagreed now, but allowed an alternative model in later life Toilet raised on plinth & folding rails Agreed Gainsborough bath Managing at present without difficulty Will require level access shower in later life Medical opinion says unlikely to deteriorate to this extent

18 Why OT s make excellent Expert Witnesses? In high value cases the recommendations of the OT s are often the largest aspect of the claim Unique assessment skills Holistic approach Emphasis upon improving independence equipment/environmental adaptation may negate the need for care Activity analysis impact of disability upon task components (e.g. decorating & gardening) Looking beyond the basic activities of daily living and into leisure! Chance to really use your OT skills!

19 The End!!!

20 Want to find out more? Please visit Somek & Associates Stand B 63