In this Action for Brain Injury Week, 2022, I have reflected on how handling brain injury compensation claims has changed during my career.
A lot has changed in the last 30 plus years, the time over which I have been handling serious brain injury compensation claims. I have acted on behalf of those who have suffered a serious brain injury or head injury, and their families.
Adversarial v Cooperation
In the 1980s, like now, the system of making a compensation claim following a serious brain injury, was adversarial. However, the way in which brain injury compensation claims are pursued has changed to the extent that there is a requirement on both sides to be far more open, to cooperate and in some aspects of a brain injury compensation claim, to work collaboratively with insurance companies, who frequently pay out the compensation to survivors of traumatic brain injury.
Back in the 1980s and 1990s, compensation claims were conducted in a similar way to poker. Acting in the interests of someone with a brain injury and their family, it was a case of keeping your cards, your evidence, close to your chest. The skill was not revealing all the details of your claim to the opponent, the insurance company acting on behalf of the individual or organisation, responsible for the brain injury.
A claim would begin by giving notice to the insurers of the claim and setting out the basis of the claim, the allegations of fault, against their insured. However, the allegations were, on occasions, limited, deliberately not revealing the full basis of the claim for compensation. On many occasions, it resulted in a denial of responsibility by the insurers, which then led to legal proceedings being commenced against the person or organisation responsible for the brain injury.
Once legal proceedings began, the court would decide what steps needed to be taken to prepare the case for trial, at which responsibility for the brain injury would be decided, i.e. whether the person or organisation causing injury would have to pay compensation, through their insurance company. Although the court continues to manage the legal process, deciding what steps need to be taken to prepare a case for trial, the information to be supplied to the insurers is far more than required in the last century.
Medical Experts in Brain Injury Claims
In all brain injury compensation cases there is a requirement to provide the insurance company and their lawyers with comprehensive medical reports, setting out the full extent of injuries sustained, the impact upon the individual’s life, the prognosis and details of any treatment/care.
What has changed in relation to medical evidence is the requirement for medical experts, acting for the brain injury person and the insurance company, is to meet in advance of any trial and to discuss their respective medical opinions. There is a requirement that medical experts, consultants and professors, prepare a joint report, signed by experts on each side, making clear what the agree upon in relation to the brain injury, what they disagree about and, importantly, why they disagree. This critical step highlights the extent to which, if at all, there is disagreement between the medical experts.
Earlier Resolution of Brain Injury Compensation Claims
Many years ago, it was frequently the case that medical experts would come to court, give evidence and having reflected upon their opinions, refine their view to the point that there was little difference between the experts in the same field of expertise. This stage is reached much earlier now, in the modern era, meaning there are likely to be less trials, with all the anxieties associated with that (for the family), thus leading to earlier resolution of brain injury compensation claims.
Another aspect of brain injury compensation claims that has changed in the last half-century is that detailed witness statements from the brain injury survivor, their family and others, are provided substantially in advance of a trial. These witness statements may address in detail the events leading to the brain injury and the impact of the injury upon an individual’s life, activities of daily living, work and needs. Although, for many years, witness statements were prepared in advance of trials, the detail within a statement has greatly increased, to the benefit of the brain injury survivor.
It has also been standard practice, for many years, for the claimant, the brain injury survivor, to prepare a detailed schedule of financial losses and expenses. This schedule informs the insurance company exactly how much compensation the claimant is looking for in settlement of their claim. What has changed is the detail and the increasing items of claim that can be pursued, to reflect the effect of brain injury upon all aspects of an individual’s life. Another development is the requirement for an insurance company to provide a counter schedule to the claim for financial losses and expenses, explaining clearly what parts of the claim and amounts they are prepared to agree, in which aspects of the claim they dispute. This enables both sides to see the issues of dispute between and the possibility of bridging the gap between the respective valuations of the claim.
The Importance of Brain Injury Rehabilitation
The two most significant changes in the way brain injury compensation claims are dealt with, is in relation to rehabilitation and joint settlement meetings.
When I first began handling brain injury compensation claims over 30 years ago, rehabilitation was in its infancy. In the vast majority of cases, once a brain injury survivor had been discharged from hospital, often after many months of impatient care, they were likely to receive relatively little rehabilitation at home or in a healthcare setting. That has changed dramatically.
The NHS now consider short and long-term rehabilitation and although there are financial limits to what can be achieved under the statutory system, one of the real benefits of pursuing a compensation claim, is to obtain interim payments of compensation from an insurance company so that rehabilitation can continue seamlessly following discharge from hospital.
Although it was once thought there was a small window of opportunity, for maximising rehabilitation following brain injury, this is no longer considered to be the case with many examples, many of which I have been involved with, showing that progress and improvement in functioning can be achieved many years after the sustaining of a serious brain injury.
A related change in the area of rehabilitation is that under a code between specialist brain injury solicitors and insurance companies, the insurance company will frequently agree to fund an immediate needs assessment report to ascertain what steps can be taken at a very early stage, to maximise gains to be made by the brain injury patient. The assessment report is for the benefit of the insurance company and the family of the brain injury survivor, so that they may both understand what may be available to help recovery. Whilst an insurance company is not bound to fund private rehabilitation in every case, insurers will often pay for rehabilitation in brain injury cases. The benefit to the brain injury patient and their family is the prospects of greater and or faster recovery.
What are Joint Settlement Meetings?
Although the current legal system for the recovery of brain injury compensation remains adversarial, the courts expect the solicitors acting for the survivor and solicitors for the insurance company to work together, to explore throughout the lifetime of the brain injury compensation claim, the prospects of negotiating a financial settlement, a financial package of brain injury compensation, without resorting to court.
In the vast majority of brain injury compensation cases, once all the evidence has been obtained (to understand the full effects of the brain injury and what the financial needs of the injured person is), the lawyers for the family and the lawyers for the insurance company will sit down, face-to-face, with the family in attendance, to discuss aspects of the case “off the record”. These are joint settlement meetings. These conversations are designed to explore what differences exist between the claimant and the insurance company, both as to responsibility for the injury and the amount of brain injury compensation to which the survivor may be entitled.
In the event the conversations, the negotiations, do not lead to a settlement, the detail of those discussions will not be made known to the trial judge. They are “off the record” negotiations. However, in many instances, these discussions, joint settlement meetings, are productive and can lead to an agreement as to the appropriate level of compensation that is to be paid by the insurance company. Even in those cases where an agreement is not reached, it is not uncommon for a resolution, an agreement, to be hammered out within a matter of weeks of the joint settlement meeting.
Brain Injury Compensation Paid by Instalments for Life
Although on one level the changes in the way in which both sides handle brain injury compensation cases has changed little in the last 30 plus years, those changes have had a significant effect on the way in which brain injury compensation claims are presented and how they are resolved.
One final change that began to be introduced in the 1980s is the basis of settlement. Before that time, in the event compensation was agreed or the court decided how much compensation was payable, the claimant and the family would receive a lump sum, a cheque, in settlement of their claim. It would then be for the family to manage those substantial sums, often millions of pounds, deciding how the money should be spent.
Their job would be to ensure there is sufficient compensation money available in the years ahead, making sure funds did not run out before the natural death of the brain injury patient. What is seen on many occasions now, is a survivor and their family receiving compensation in instalments. This is frequently an attractive option.
Prior to the settlement of the claim a comprehensive financial report will be obtained to determine how much compensation will be required each year of the claimant’s life, based on the evidence of the medical experts and care experts, as well as accommodation needs. The financial report also advises on investing the compensation so the best returns are achieved on part of the compensation claim that will not be required for many years. This provides considerable comfort to the individual and their family, knowing there will be sufficient money each and every year and furthermore, an agreement can be reached with insurers that annual instalments of compensation will be paid for however long an individual lives for.
All the changes I have written about have played a significant part in the way brain injury cases are handled, although I think it is the way in which compensation is now paid in some cases, by instalments, which is the most significant. Families will always be concerned about what will happen to their brain injury loved one following their own death. Knowing that monies will continue to be received by their husband, wife, son, daughter, for so long as they will live, provides considerable comfort and certainty to all.
There is no doubt the changes in the way brain injury compensation claims are handled and resolved, improve lives.
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