Rehabilitation has long been encouraged and enshrined in the personal injury claims process. Details are set out in the Rehabilitation Code and endorsed in the Civil Procedure Rules Pre-Action Protocol for Personal Injury, the Guide to the Conduct of Cases involving Serious Injury and the Guide for Case Managers. These all promote the collaborative use of rehabilitation and early intervention during the claims process.

Clare Salmon, partner in the Personal Injury team at Stewarts, explains in an article first published in the November 2024 edition of PI Focus what this means in practice for the injured person and teams involved, and how the process is best managed.

 

Background

Financial compensation can never change what has happened. However, early and appropriate rehabilitation can help maximise the injured person’s recovery and promote independence with a return to their pre-injury position as far as possible. In most cases, the earlier the right rehabilitation is received, the better the outcome for the injured person. This should, in turn, reduce the overall financial outlay for the paying party.

The NHS is rightly praised for its’ skill and compassion when dealing with catastrophically injured individuals and their families, particularly in the acute treatment stage. However, it is widely recognised that the resources for rehabilitation services in the community after hospital discharge are stretched. This will likely become a more significant problem given the current economic and political climate. Therefore, if additional private funding for rehabilitation services can be accessed through a compensation claim, it can only benefit the rehabilitation potential of the individual.

Ultimately, each situation will turn on its’ facts and depend upon the individual’s rehabilitation needs. However, there are common threads, and the roles of the individual, the clinical case management team and the legal teams involved in the claim are worth further consideration.

 

Institute of Registered Case Managers

The role of a case manager is vital to the rehabilitation process but is likely something many injured people will have never heard of, and ‘case management’ can be a confusing term to understand.

The definition of case management adopted by the Institute of Registered Case Managers (IRCM) is “a collaborative process which assesses, plans, implements, coordinates, monitors, and evaluates the options and services required to meet an individual’s health, wellbeing, social care, education and/or occupational needs, using communication and available resources to promote quality, cost-effective and safe outcomes”.

Case management professionals come from a variety of clinical or occupational roles and will be regulated by their own professional bodies. However, the fundamental aspects of their case management roles were previously not specifically regulated, leading to the IRCM’s inception.

The forthcoming 2024 registration scheme under the IRCM aims to safeguard people who use case management services by setting and upholding standards for registered case managers. This will be a nationally recognised register, ensuring the protection of service users and the public by promoting and upholding the high standards of practice and ethical conduct for the case management profession. This registration process is due to launch towards the end of 2024 and into 2025, and it will be interesting to see how this will shape the future of case management in the UK.

 

Collaboration

Providing early information and engagement with the defendant team involved in a catastrophic injury claim is essential to support requests for rehabilitation funding and interim payments. The early notification of claims and regular way forward/case planning meetings are helpful to both parties. It gives the claimant’s legal team an opportunity to tell the claimant’s story and the impact the injury has had on all aspects of their life, family, home, work, social and leisure activities, as well as setting out their rehabilitation needs. In turn, this enables the insurers to set an appropriate insurance reserve for the case.

There may remain contentious issues in the litigation or upon which the parties disagree, but it is helpful if those can be addressed early or parked for future consideration, if necessary, while enabling the rehabilitation to continue.

 

The injured party front and centre

This seems obvious, but the injured person’s goals, objectives and interests must be at the forefront of the rehabilitation plan. Sometimes, focusing on their physical rehabilitation can mean their longer-term goals are postponed, seemingly indefinitely, which can demotivate the individual.

At the same time, it is important to ensure the emotional and psychological needs of the injured person’s family are not forgotten. If the injured person’s family are not well supported, they may not be best placed to perform their usual family role and be there for the injured person. Catastrophic injury claims have a devastating impact on an injured person’s family and their wider friendship group, but the injured person will need their support if they are to achieve their goals.

 

The Multi-disciplinary Team (MDT)

Setting up a specialist MDT while the injured person is still in an acute clinical setting is vital. Appointing and lining up appropriate specialist therapists and future clinical input before the injured person is discharged can be crucial.

Sometimes, the MDT can involve 10 or more skilled professionals who all bring their expertise to the claimant’s rehabilitation. Regular MDT meetings with the full or core clinical team and the injured person or their family members are crucial to maintaining a clear focus on the rehabilitation goals the whole team is working towards.

In the modern era of remote conference calls, gathering the MDT for remote meetings can be easier and quicker than everyone travelling to a meeting. However, there is no substitute for some of these meetings taking place in person, particularly when they involve a brain-injured claimant who may struggle to maintain focus or understanding in a conference call with multiple participants on the screen.

It is always worth considering inviting the defendant team to attend MDT meetings. In the right circumstances, this can be helpful in explaining challenges in the rehabilitation or why funds are required at short notice, and involving the defendant team in the MDT can sometimes help unlock funding requests that have been refused or stalled.

 

Case study  

In June 2024, the High Court approved the settlement of a claim for damages brought by one of our clients who had sustained a severe life-changing brain injury in a road traffic collision while walking on the pavement over four years ago.

In that case, we met the young person’s family when the prognosis was very poor, and they were still in the intensive care unit. The importance of introducing a case manager and MDT at an early stage to support the individual and their family in navigating this horrendous journey was obvious. Nikki Ounsworth, Partner and Case Manager of COOCI Associates, was introduced as case manager on this case within five weeks of the injury.

 

The case manager’s role

Nikki says: “Early intervention is crucial to enable a case manager to plan an effective rehabilitation programme in the community. In my experience, starting rehabilitation early and providing appropriate treatments can significantly improve outcomes for the individual, in this case enabling an interdisciplinary team approach. As professionals from various disciplines we worked collaboratively to provide holistic care to the client.

“This case began at the start of the Covid-19 pandemic, and everyone was aware of the need to be responsive and creative. I involved the family in the planning process while providing education and information to help them manage their expectations, as well as providing ongoing emotional support. The inpatient rehabilitation opportunities planned for my client were quickly derailed due to acute and rehabilitation beds being allocated for Covid patients. We needed to expedite a rehabilitation programme in the community safely and effectively.

“Our team was highly experienced and understood the key components to ensure success, including:

  • excellent collaboration and communication, especially during challenging episodes
  • a diverse skill mix, and training to respond to episodes of change
  • shared goals, agreed in partnership with the client and her family to ensure they were realistic
  • the development of a supportive environment, ensuring resources were appropriately used while ensuring the client remained at the centre of the care
  • ensuring the client’s preferences, needs and values were considered at all stages of their care and rehabilitation programme.”

 

Collaborative approach

As a result of the collaborative approach during the claim, we secured more than £6.5m in interim payments to support funding for the 24-hour care package, therapies and extensive equipment required. This enabled the family to fund a temporary rental property after discharge from hospital and then purchase and renovate a more suitable longer-term property.

William Latimer-Sayer KC, lead counsel on this case, says: “Engaging the defendants in the MDT process enabled them to clearly identify with the claimant.  It meant that she became a real person rather than just a name on a piece of paper or a figure in a list of claims.  I believe it lead to the insurers, reinsurers, defendant solicitors and counsel all having some sympathy towards the claimant and a genuine interest in her wellbeing and how she was getting on.”

During the four years of the claim, the parties had regular ‘way forward’ meetings to explore the factual issues and secure regular interim funding. The regular interim payments were essential to ensure the claimant could fund their extensive rehabilitation programme and higher living costs, which was hugely reassuring for the family. The claimant had the specialist rehabilitation and care needed to progress their recovery at the earliest opportunity to maximise their potential.

We engaged with the defendant team within a few weeks of the injury in order to adopt a collaborative approach. Inevitably, there were disagreements in relation to some of the core issues in the case concerning accommodation needs and the proposed care package. However, the parties ensured these were resolved swiftly, and a protracted court trial was unnecessary. For example, an interlocutory hearing was required on the issue of a large interim payment for a property that required substantial renovation, but this was successfully determined at an early stage.

Experts on both sides of the case agreed that the claimant required 24-hour care, but there was a difference of opinion about what care and therapies would be reasonably required and how they should be delivered. Similarly, it was agreed the claimant required a larger property, but the size and adaptations required were contested. However, given the considerable and regular disclosure provided in the case, there was sufficient evidence to support the claimant’s submissions.

 

Case result

On the conclusion of the case, the claimant received a lump sum of just over £18m (including interim payments of £6.5m already received), plus annual periodical payments of £455,320 to increase annually in line with the carer’s earnings index.

These payments capitalise the claim at £41.7m over the claimant’s lifetime in what is thought to be one of, if not the, highest settlements achieved at the current discount rate of -0.25%.  The value of the settlement largely reflects the severity and complexity of the injuries, which necessitated full-time double-up care including waking night care together with a relatively long-life expectancy and with the strength of the expert evidence, which involved a real team effort to collate.  However, it is my firm view that engaging in the collaborative approach to litigation and rehabilitation by both parties in this case ensured an earlier and smoother resolution of the claim, with both parties being fully engaged in the process to ensure an outcome which properly met the claimant’s long-term needs”.

The final comment must go to this client’s mother, who, at the conclusion of this case, said: “Early funding for the right treatment, rehabilitation and support has been crucially important, and without it, I don’t think we would be where we are today.

“This was never a journey anyone would choose to take, although it has been a remarkable one. My child has shown incredible strength and determination throughout their recovery, which continues; rehabilitation does not stop. I have the utmost respect and admiration for them; they fight on despite every day being a difficult and painful one. What we’re really pleased with is that this enables my child to receive the lifelong care and support they desperately need to give them the best quality of life possible.

“Over the past four years, I have learnt so much in many disciplines. I’ve worked with some incredible people who have all played a part in getting my child to where they are today. Obviously, the surgeons, doctors and nurses who saved my child’s life at the hospital they went to after the incident will always be very close to my heart, and we will be eternally grateful to them; they are very special people. We have an incredible multi-disciplinary team at home to help with my child’s recovery (thanks to early funding). I can’t thank everyone enough for the professionalism, care and support given to my family at the worst time of our lives.”

Thanks to Nikki Ounsworth, William Latimer-Sayer KC and the claimant’s family for their helpful contributions to this article.

 


 

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