If my client chooses to bring a Brain Injury claim, then I will do my best to firstly agree communications. This includes in what form, preferably what time of day and day of the week, how closely they would like to be informed of developments etc.

I try to manage expectations in terms of the basic framework of a case and when our investigations reveal evidence to support a claim.

If the Defendant admits a Brain Injury claim, which is less often than not, then a letter of apology may be sent from the Chief Executive of the hospital. That is often of little comfort for the family, as although a vindication of their claim, they often feel upset and rage at the confirmation that their child’s life and their lives have been needlessly ruined. 

To put this in context, the letter of apology typically follows a lengthy investigation into the claim, a denial to our initial Letter of Claim and usually after court proceedings have begun. If the case is defended to an advanced stage, this causes distress and an understandable feeling that the injured client is being injured again.

The role of Experts in a Brain Injury claim

As part of the litigation, we need to ascertain our client’s needs and the cause and extent of the problems that they face, which involves instructing experts (expert witnesses) from multiple disciplines who will each need to visit our client. Often, the Defendant will require their own experts of like disciplines to do the same. 

To make life a little easier, we often send a timetable to our client identifying experts to be seen, when they will be attending, and any other useful information to assist our client in preparation. Most experts will visit our client at home due to severely impaired mobility and constant care needs.

The Defendant’s experts sometimes have a different appreciation of what our client’s disabilities and needs are. This inevitably causes further distress. It is therefore important that the family are prepared for this possibility.

Interim Payment of Damages

If there is an admission of liability, then alongside the litigation, we set about obtaining some of the damages (compensation) up front so that the inevitable gaps in what our client is receiving in care and therapies can be addressed sooner rather than later.  This is called an Interim Payment.

Obtaining an interim payment is another key point in the case where we explain and discuss in detail with the family what they should expect as this can be another bumpy and lengthy road, but ultimately with a satisfying end point.

Once we receive an Interim Payment, the first port of call for us is often involving a professional Deputy to look after our client’s finances and in turn, the Deputy would instruct a Case Manager (in conjunction with the family) who will arrange private assessments by various therapists on the ground.

These therapists are not expert witnesses; their duty is to their patient, our client, and not the court (unlike an expert witness whose duty is to the court, and have to be impartial). 

In addition to the above, respite care is often arranged by the Case Manager. Yes, unfortunately, another set of ‘experts’.  However, unlike the expert witnesses, the treating doctors and therapists will carry out their recommendations and there should be regular and frequent Multi-Disciplinary Meetings (MDTs) arranged by the Case Manager to review progress and adjust the rehabilitation programme accordingly.

It is important that family members attend. I attend certain MDTs to ensure that I am properly aware of what is going on, particularly how successful the rehabilitation package is and to identify any issues which might require the input of the expert witnesses, the Professional Deputy or the barrister instructed in the case.

Typically, we also look at accommodation. In all my cases, the family home has become unsuitable in light of the client’s extra needs, and does not lend itself to adaptation for safe and comfortable living, therapy in the home and the presence of carers. 

There can be differences of opinion amongst the expert witnesses and the treating doctors and therapists. There is no easy answer and the solution depends on the circumstances. What is paramount is that our client receives appropriate provision be it accommodation, care, equipment or therapies.

So I ascertain the basis for the disagreement and decide from there the best way to resolve it if possible. This may involve a discussion between the expert witnesses and/or the expert witness and the treating therapists, for example.

It is also very important to keep the Defendant in the loop on developments which I do by sending regular updates of medical and case management records; it is more likely they will co-operate with any further Interim Payment requests if they know what’s being spent (and it’s better to address any issues the Defendant may have early on in the Brain Injury claim rather than leave it at the end when it’s too late).

As a clinical negligence lawyer I always have to keep an eye on the end result – the likelihood that our client will recover damages for what will be claimed in the litigation; i.e. the likelihood that past expenditure from an Interim Payment for various needs will be recovered in full; and the extent to which the recommended needs for the future, after the case is finished (care, equipment, therapies, accommodation etc. as assessed by expert witnesses) will be recovered.

Any expenditure made from an Interim Payment is at risk because the overall value of the case has not yet been decided, so there is a risk that a judge may find that certain expenditure is excessive and won’t allow full recovery, which means that there would be a deduction from the total amount of damages at the end of the case. It is my job (along with the Professional Deputy) to minimise the risk of that happening. 

Settlement

Seeing the lives of my clients and their families being changed through receiving appropriate accommodation, care, therapies and equipment is the most satisfying part of my job. It is certainly worth every bit of the fight.