Stroke claims – how to investigate and determine the harm caused by negligent delay
In medical negligence claims involving the delayed diagnosis or treatment of a stroke, it is essential to distinguish between the harm caused by the underlying medical event, and the additional harm caused by the negligent delay.
Stroke, by its nature, can lead to a range of outcomes even when treated promptly, from full recovery to severe disability or death. For this reason, the legal analysis must begin by establishing what the patient’s condition and prognosis would likely have been if appropriate care had been provided in a timely manner.
This exercise is often referred to as assessing the counterfactual scenario. Medical experts are asked to determine, on the balance of probabilities, what level of recovery the patient is most likely to have achieved with correct and timely treatment. For example, some patients might have remained significantly disabled even with optimal care, while others might have made a near-complete recovery. Without this baseline, it is impossible to identify what proportion of the patient’s current disability can properly be attributed to the alleged negligence.
The Modified Rankin Scale plays an important role in this analysis because it provides a structured and widely accepted way of describing functional outcomes after stroke. By assigning a likely Rankin score, both to the actual outcome, and to the hypothetical outcome with proper treatment, experts can give the court a clear, comparative picture. The difference between these two positions represents the additional injury said to have been caused by the delay and therefore forms the basis for quantifying damages.
This distinction is crucial because compensation in medical negligence claims is intended to place the claimant, so far as money can do so, in the position they would have been in but for the negligence. If part of the disability would have occurred in any event, damages must be limited to the incremental harm caused by the breach of duty. A careful assessment of likely stroke outcomes, supported by clinical evidence and functional scales such as the Modified Rankin Scale, therefore ensures that any award of damages is both fair and accurately reflects the true impact of the negligent delay.
The Modified Rankin Scale
The Modified Rankin Scale (often shortened to mRS) is a simple tool used by doctors to measure how much a person is affected after having a stroke. Rather than focusing on the medical details of the stroke itself, the scale looks at how well someone can manage everyday life afterwards. It helps answer a very practical question: how independent is this person now compared to before their stroke?
The scale runs from 0 to 6, with each number representing a different level of disability. A score of 0 means there are no symptoms at all, while 1 indicates very minor symptoms that do not interfere with usual activities. A score of 2 describes someone who has some limitations but can still manage their own affairs independently. As the numbers increase, the level of dependence rises: a score of 3 means the person needs some help but can still walk unaided, while 4 indicates they need help with walking and personal care. A score of 5 represents severe disability requiring constant care, and 6 means the person has died.
Doctors typically use the Modified Rankin Scale after the immediate treatment phase of a stroke, rather than at the moment the stroke occurs. It is especially useful during recovery, such as when a patient is discharged from hospital or seen at follow up appointments weeks or months later. By comparing scores over time, healthcare professionals can see whether a patient is improving, staying the same, or declining.
The scale is also very important in medical research. When new stroke treatments are tested, such as drugs that reduce blood clotting or procedures to remove blockages, researchers often use the mRS to measure how effective those treatments are. In many studies, a good outcome is defined as a score between 0 and 2, meaning the person remains largely independent in daily life. This makes the scale a key way of comparing different treatment options.
Finally, the Modified Rankin Scale helps guide decisions about ongoing care and support. A lower score might mean someone can safely return home with little assistance, while a higher score suggests they may need rehabilitation services or long-term care. Because it focuses on real-life abilities, the mRS provides a clear and easily understood picture of how a stroke has affected someone’s independence and quality of life.
Case study
The medical negligence team at Penningtons Manches Cooper has recently quantified a complex stroke claim using the Modified Rankin Scale, with the help of medical experts in the fields of neurology and stroke medicine. These specialists relied on research papers and statistical data, alongside the clinical picture of the patient in question, to advise that a patient who died from stroke was likely, on the balance of probabilities, to have survived the stroke and achieved a mRS of 3 with better medical care.
This advice enabled the claim to be quantified on the basis that the patient would have been able to walk unaided, after a period of rehabilitation, and would have had sufficient cognitive ability to return to some type of work, (albeit probably not the work previously undertaken). A sedentary part-time position may have been required for around the first 12 months, to allow for post-stroke fatigue. The patient would then have continued rehabilitation and built up to a level of work that could be sustained. A young age and lack of any pre-stroke neurological impairment would have been in their favour.
At mRS 3, the patient would have been able to carry out most domestic activities, although those are likely to have taken more time than prior to the stroke. They would probably have been able to drive following appropriate DVLA assessment. Although they would likely have struggled with some DIY activities, such as those involving power tools and ladders, they would have managed adequately otherwise.
Additionally, it was probable that the patient’s mood would have been affected by the change in job (and impact on career progression), and in the role as family provider, so significant psychological support would have been required to overcome these challenges. Finally, life expectancy would also have been reduced because of the stroke.
Taking this information into account, partner Alison Johnson then obtained witness and expert evidence, including independent quantum expert reports, to be able to quantify the claim and put together a full schedule of loss with narratives explaining and costings for all the heads of loss.