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For the best? Innovative treatments in medical negligence claims

Suzanne Trask of law firm Bolt Burdon Kemp discusses the need to keep up to date with the latest treatments when involved in medical negligence claims and factors that ought to be considered.

Sergey Nivens

The news that the UK’s first double hand transplant was performed a few weeks ago is the latest example of incredible technological advances benefitting patients.

In a historic operation last month, Chris King, who lost both his hands during a work accident three years ago, received two donor hands.  

Groundbreaking medical developments like this raises issues around what private treatment a patient can claim in litigation when they have suffered medical negligence, and the extent to which a lawyer can help a client receive the most innovative treatments.

You can claim for compensation if you suffer an injury because of sub-standard medical care. You are able to claim damages for the injury itself and the consequences of this. When making a claim for compensation, you can seek the private cost of the medical treatment even if it is available on the NHS, as the law allows for this.  

With no cost limit, clients can claim for the most expensive technological developments if a medical expert says that there is a reasonable chance that it can help them. Such cutting edge treatment can be very expensive, taking into account both the cost of the initial procedure and the aftercare. This is often needed for the rest of the claimant’s life. Sarah Thomas, who became paralysed after a car accident with a UK driver in Australia, was awarded compensation in the High Court last year for an Exoskeleton (which could help her to walk again) and the maintenance and replacement costs for the rest of her life. The case settled for a total of £6.25 million. Most of the sum awarded in such claims relates to the private cost of carers and therapies to help the individual, as well as suitable accommodation.

Claimants may face the prospect of a lifelong injury. Their lawyer should do everything they can to help the individual get back to the life they had before the injuries caused by negligence. They did not choose to be in this situation, so a claimant and their family shouldn’t worry about ‘being judged’ for claiming compensation. This is sometimes a fear people have. People shouldn’t have to ‘get by’ after a devastating injury caused by negligence, and live with a compromise. They deserve better.  

Bearing this in mind, it’s important for a lawyer to listen to what their client wants to do and take this into account in their claim. Going down the route of trying novel treatments could be a scary and unnerving process for many people, and they may not wish to do this. On the other hand, it may be challenging to manage the expectations of some clients who feel entitled to the most innovative, expensive treatment because they have been injured due to negligence. There must also be evidence that it has a reasonable chance of helping them.

The following factors should be considered:

·       Whether the treatment sought is required because of the injury that is caused by negligence, or is due to their underlying condition. A tricky area in medical negligence claims is proving causation. This is often an area of dispute. Compensation can only be recovered for the extra injury caused by negligent medical treatment. So, not for the condition that was the reason they were seeking treatment in the first place. Evidence is obtained from independent doctors on the difference that negligence has made.

·       Evidence is also needed on how the innovative treatment may help the claimant, weighed against the risks that it may not work or could even worsen the client’s condition.

·       The defendant will be keen to test the claimant’s evidence at each stage. They may argue that a novel treatment is only likely to be of speculative benefit so it is not appropriate for them to pay for this. They may instruct an independent medical expert to consider this.  

·       When a claimant chooses to use a more expensive treatment option, sometimes a defendant alleges that the individual is failing to mitigate their loss if they do not use a cheaper alternative. It’s important to remember that a claimant does not have to go for the less expensive option. It may be that the evidence shows that a high-cost treatment is likely to be more beneficial.

·       The NHS and mainstream private healthcare may not yet offer the treatment that the client is seeking. Some technological developments may still be at the trial stage. If it can be justified by an independent medical expert, and shown that participating in a trial is reasonably likely to help their condition, then the associated treatment costs may well be recoverable. However, the patient would still have to meet the criteria to participate in the trial and may not be suitable.

Medical negligence lawyers should be aware of new medical developments. They can then appreciate what is available and discuss these options with their clients and the independent medical experts instructed on the case. New developments such as the double hand transplant are emerging all the time and technology which is currently novel will most likely become more commonplace in the future.

This must be borne in mind by medical negligence lawyers, as once a compensation claim has been settled it is usually final and cannot be re-opened. The claimant must be given the best opportunity to access the latest treatment at the time of the claim. It may also be possible to include a contingency for future treatment in the final settlement, but this will be a limited and fixed sum.

Suzanne Trask is a partner and head of the medical negligence department at law firm Bolt Burdon Kemp.

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