Brain injury claims: ensuring appropriate compensation for those affected

For personal injury or medical negligence cases where an individual has suffered a brain injury, understanding what they have lost, and what the future is likely to hold for them, is crucial for ensuring that they receive the right support and compensation.

This article has been prepared with reference to a recent case handled by our specialist brain injury team, and explains the importance of obtaining interim payments, fully exploring a client’s needs and instructing experienced medical experts, as well as why planning for potential changes to a client’s circumstances is vital.

The case

Mike was in his 50s when he became unwell. He had previously seen his GP for depression, which was not helped by financial and work pressures during the Covid-19 pandemic. He became dependent on alcohol and this impacted his health.

One weekend, he developed seizures and blacked out, following which he was urgently admitted to hospital. After investigation, he was diagnosed with hyponatremia, a condition where sodium levels in the body are too low, creating a sodium deficiency.

The correct treatment was identified; however, the hypertonic saline was administered too quickly, leading to injury. Mike’s neurological condition deteriorated. Following investigation, including MRI and CT scans, a diagnosis of significant brain injury was made, and confirmed later as a condition known as osmotic demyelination syndrome.

Initially, Mike’s family did not know if he would survive; he remained in hospital for four months before being transferred to a brain rehabilitation unit for a further six months. Mike is fiercely independent and determined to get on with life. While he made a lot of progress, after discharge, he still required lifelong support.

Interim payments

Even in cases where liability is admitted, it is unusual to be able to value a claim straight away, as this depends on the individual’s medical condition, how it is likely to progress, and understanding their specific circumstances. The process between obtaining a judgment and receiving a settlement may take several years. This is why interim payments are so important pending a final settlement.

In Mike’s case, fundamental errors were admitted after the incident and the focus of the case moved to an assessment of damage. We obtained judgment and an immediate interim payment on account of the final damages award, to assist him with his urgent needs.

The interim payment obtained for Mike was crucial. It enabled him to employ a case manager, and he has since confirmed that this made ‘all the difference’. She worked with Mike to find a support worker for the next stage of his rehabilitation, and in his words, this ‘changed my life entirely… [it] helped me start my life again properly!’.

It also meant he was able to buy equipment; in particular, an off-road wheelchair to continue his outdoor pursuits, and technology to assist with his communication, enabling him to have his speech assistance app which he uses to this day.

In addition, most claimants will need alternative accommodation if they have significant additional physical needs, as it can be difficult to stay in a home which has not been adapted. Using a standard bathroom, and negotiating steps and stairs can be a major challenge. Storage space for important equipment such as mobility aids will be needed, and ideally a property will have a dedicated area for time with therapists.

Mike was fortunate that his existing accommodation had previously been adapted by another owner, and provided reasonable functional space for the short term.

Progress and assessment

Mike retained his cognitive abilities to a great extent; however, even though he has worked hard to overcome his physical difficulties, he still needs to use a walking frame, as well as a wheelchair for longer distances outside. There are certain issues that severely impact his independence, primarily relating to communication. He has dysarthria, meaning he has to resort to using assistive technology and rely on individuals who know him well, to ensure he is understood.

We met with Mike and his family at the rehabilitation unit twice, and had many Zoom calls, and a number of meetings face to face. These meetings were crucial. One family member, in particular, was able to work with Mike and assist him with the litigation process, becoming his ‘litigation friend’. The help provided was invaluable to Mike and our team, ensuring we could get the most out of our discussions. Together, we were able to agree priorities and discuss plans for Mike’s future.

Litigation experts were instructed to assess present and long-term needs and it was important to ensure they had specialist expertise and knowledge of neurological injury. Employing a neuro-rehabilitation expert, a speech and language expert, and an assistive technology expert was key; however, a substantial team of experts was also needed to assess Mike’s needs including care, OT, neurophysiotherapy, neuropsychology, and accommodation.

Assessing future needs includes the involvement of litigation experts on both sides, and this process was time consuming and demanding for Mike, his partner, and the litigation friend, something not to be underestimated.

Unforeseen factors

Often the focus of a case is the individuals’s medical condition and what the future of the disability will look like, especially when time is likely to change things, either as a result of improvement or, as is often the case, deterioration because of age or other factors.

However, it is also important to consider lifestyle and family circumstances and changes that may impact on what is needed. There may be issues which the individual has not considered or finds difficult to discuss. Supporting someone with additional needs can be very demanding and can put pressure on a relationship – life goals may change, or family members may be affected by illness or age-related conditions, meaning their assistance cannot be relied upon in the long term. This is where the legal team has to consider future risk factors, and will be helped by considering the potential for unforeseen developments in regular face to face meetings.

In Mike’s case, his relationship broke down, but this risk, although seemingly unlikely at the time, had been discussed and factored into the potential damages award. This meant we were able to quickly adjust the claim being made, which significantly increased its value.

Our advice

When instructing a legal team, it is important that they have the expertise to deal with evolving medical issues, but they should also take the time to get to know you and meet with you in person so they can understand the impact your injury has had and is likely to have. It is a necessary part of the litigation process – although not an easy one – to consider the possibility of negative events in the future, as well as positive, and ensure they are taken into account.

In Mike’s case we explained the importance of ensuring he would have sufficient damages to provide care and support for the rest of his life, and he sensibly asked us to identify an alternative damages claim, in the event his main carer might not be able to provide support forever. When this situation materialised a few months before the case was due to conclude, we were able to rapidly amend the claim to ensure extra resource was available.

Mike settled his claim with a significant lump sum and regular annual payments to cover care and case management. Understanding his particular circumstances, priorities, and needs helped us to react quickly to changing circumstances and reach a settlement which provides financial security for the future. A strong team of litigation experts and having a litigation friend proved to be important in achieving a successful outcome, which Mike is very happy and grateful for.

The personal details about our client have been changed to ensure privacy.