In recent weeks, robotic limbs and breakthrough immunotherapy cancer treatment have hit the headlines, prompting questions about when the cost of such treatment can be claimed in litigation – what does the law say patients can expect and demand?
If you are instructed in a claim for compensation for injuries caused by negligence, should you claim for the cost of cutting-edge treatments, with no expense spared? How far should you go to seek out novel treatments that could help your client?
As we know, the compensatory nature of damages aims, as far as is possible, to put the claimant back into the position they would have been in, had the negligence that caused their injuries not occurred. This means that it is open to the claimant to claim the cost of any available technology or development which an expert reports is likely to help them. Is there a limit to this?
A judge ultimately decides if this should be paid by the defendant, should the claim reach trial on this issue. The law says that the claimant is entitled to compensation to meet their ‘reasonable needs’ arising from injuries caused by negligence.
In a claim for medical negligence, the very reason for the claimant coming into contact with the tortfeasor is because of an existing medical concern. They must prove the division between the underlying condition that they would have gone on to suffer in any event, and that extra injury only suffered because of the defendant’s negligence. Causation is very often disputed in medical negligence claims, as this defines the extent of the injury to be compensated and hence the value of the claim.
The defendant will seek to keep the compensation paid by them to an absolute minimum and will inevitably argue that any technology or cutting- edge treatment claimed is not something that will assist the claimant, so it is not reasonable to recover. They may also have instructed an expert to provide an opinion on this.
There may be range of reasonable treatment options to meet the claimant’s needs, but the equipment or treatment claimed does not need to be the cheapest available. Defendants often allege that a claimant is failing to mitigate their loss if they do not use the cheapest option. However, should the more expensive alternative be reasonable, better meet the claimant’s needs, and be supported by expert evidence it is likely to be recovered.
Developments in technology, such as the exoskeleton for those who have suffered a spinal injury, are incredibly exciting developments which mean those who are wheelchair users may be able to walk again.
Such new technology can be very expensive. A claim should include not only the initial cost, but the price of ongoing maintenance and replacements or further necessary treatment during the life of the claimant. The initial cost of an exoskeleton starts at £44,000, going up to well into six figures for more expensive models. The costs of an exoskeleton were recovered as part of a rehabilitation package in the recent claim of Sarah Thomas, who was left paralysed after a car accident in Australia.
The first consideration will always be what options the claimant would like to consider. As encouraging as these new developments are, we must be mindful of the needs of different people. Some do not wish to go down the road of new and radical developments. Careful instructions should be taken on what the claimant would like to claim, taking into account the full range of options available.
On the other hand, some claimants may feel they are entitled to the latest treatments, at any cost, by virtue of their injury being caused by negligence. It can be very challenging to manage their expectations, given that they are dealing with so much else at that time. Claimants may find it difficult to accept advice on the limits of what can be achieved through the legal claim.
Recently, it was reported that Erik Sorto, a 34-year-old American who had been paralysed from the neck down because of a gunshot wound, is now able to control a robotic arm purely by the power of thought. This is possible because of a neuroprosthetic device implanted into his brain. When will we start to see this pioneering treatment claimed in schedules of loss?
The answer to this must be as soon as it is possible to prove that this treatment will most likely benefit the claimant, where the paralysis is due to negligence. Medical experts lead the way in terms of recovery of the cost of innovative treatments. They provide evidence to the court on what is likely to assist the claimant, taking account of the risks that it may not work or that it may actually cause a deterioration in their condition, to assist the judge in reaching a view on what is reasonable.
So new technological and medical developments do in turn push at the boundaries of what is recovered in claims for compensation.
I would encourage claimant solicitors to be aware of novel treatments and to probe medical experts on the benefit that they may offer your client. It may be that they say that it is not something that on balance is likely to help them, but the question should be asked. We must push the boundaries of what can be achieved for our clients.
Claimants often suffer life-long injuries with many years of their life remaining. Medical advances move very quickly, and treatments that are currently novel may well be standard in 20 years’ time. Should the claim be already settled without provisional damages, the claimant’s award will be final with no further remedy.
A claimant should not be criticised for trying everything they can to recover their quality of life, and receiving compensation for this. They should not need to compromise on what they are able to do, or just get by. This is not a position that they chose to be in, as they suffered their injury due to the negligence of another.
Claimants are not asking the law to be generous. They are simply claiming for the opportunity to try to get a little bit closer to the life that they previously had.
Suzanne Trask is a partner and head of the clinical negligence department at Bolt Burdon Kemp