Could we, should we do more?

In Ireland, solicitors representing catastrophically injured patients such as those with cerebral palsy - are at all times mindful of our duty to secure the maximum amount of compensation that our clients are entitled to, in order to give them the best shot at leading as comfortable and normal a life as possible.

The concept of a solicitor having a role to play in our clients' physical and mental rehabilitation may, at first, appear unusual, but it is entirely reasonable. We learn over the lifetime of the case, from speaking with our clients and the experts retained, of all the ways in which their lives have been affected - and will continue to be. Given that we see, first-hand, the difficulties our clients encounter trying to pick up the pieces, it is worth considering how our roles could be expanded, beyond progressing a case and maximising quantum.

Rehabilitation Code

In Britain, it is well established that solicitors acting for the injured patient have additional duties. As a matter of course, solicitors representing catastrophically injured patients there now play a key role in arranging and driving rehabilitation.

The Rehabilitation Code was first published in 1999. There are obligations im­posed upon the plaintiff's solicitor in section 2, in particular: "The claimant solicitor's obligation to act in the best interests of their client extends beyond secur­ing reasonable financial com­pensation, vital as that may be. Their duty also includes considering, as soon as prac­ticable, whether additional medical or rehabilitative intervention would improve the claimant's present and/ or longer-term physical and mental wellbeing. In doing so, there should be full con­sultation with the claimant and/or their family and any treating practitioner where doing so is proportionate and reasonable. This duty contin­ues throughout the life of the case, but is most important in the early stages."

For plaintiff solicitors, adhering to the code involves promptly disclosing accident details to the opposing party, thereby initiating discussions on rehabilitation needs, even before liability determinations. Utilising mechanisms like the claim notification form streamlines  this process, ensuring that rehabilitation considerations are integrated into the earliest stages of the claim. By engaging in rehabilitation efforts, plaintiffs stand to not only expedite their recovery but also demonstrate their proactive approach to mitigating losses.

Compensators and their solicitors are tasked with proactively assessing the potential benefits of additional medical or rehabilitative treatments for plaintiffs. This includes offering, for example, physiotherapy and facilitating access to various forms of rehabilitation, whether through external providers or existing healthcare channels.

The assessment process, as outlined by the Rehabilitation Code, involves an impartial evaluation by independent re­habilitation treatment advisers. Through comprehensive as­sessments, these professionals identify suitable interventions tailored to the plaintiff's needs, ensuring a holistic approach to recovery and wellbeing.

Of particular significance is the provision within the code that allows for rehabilitation arrangements to be made without prejudice and irrespective of liability. This proactive stance, especially crucial in severe cases, enables compensators to offer vital treatments, such as physiotherapy, to the injured patient before liability decisions are finalised. Moreover, the code safeguards plaintiffs by stipulating that, if a claim fails or liability is disputed, the funding for rehabilitation isn't reclaimed unless fraud or fundamental dishonesty is proved - a provision that underscores its commitment to the plaintiff's wellbeing.

In essence, the Rehabilitation Code serves as a blueprint for fostering collaboration, prioritising claimants' holistic recovery, and ensuring that rehabilitation remains a cornerstone of personal-injury claims in the pursuit of justice and restoration.

Serious Injury Guide

In Britain, there also exists the Serious Injury Guide. This is a `best-practice' guide, designed to assist with conducting personal-injury cases involving complex injuries, particularly those with a potential value on a full liability basis of Stg £250,000 and above, as well as cases likely to involve a claim for future continuing loss. The guide provides a framework for parties to work together towards resolving the case by cooperating and narrowing the issues, while putting the claimant at the centre of the process.

The guide encourages positive collaborative behaviour from both sides, and works in parallel with the civil procedure rules. It does not affect a solicitor's duty to act in the best interests of the client and upon their instructions.

The principal aims of the guide include resolving liability as quickly as possible, providing early access to rehabilitation for the claimant to maximise their recovery, resolving claims in a cost-appropriate and proportionate manner, and achieving resolution within an appropriate agreed timeframe. Collaboration and dialogue are central objectives to achieving efficient case progression through an agreed action plan, dealing with, but not limited to, liability resolution, rehabilitation, quantum evidence, and overall settlement.

The Serious Injury Guide also includes provisions for multiple defendants and ongoing review and forward planning, including regular dialogue between the parties and prompt communication of material changes in circumstances. Additionally, the guide provides guidance on rehabilitation, escalation procedures, dispute resolution, and costs. It encourages the early commitment to pay an interim payment towards disbursements and a contribution towards base costs following the resolution of liability.

It includes an appendix that discusses `open-book' rehabilitation best practice, emphasising the benefits of dialogues around rehabilitation progress, interim funding requests, and medico-legal assessments. It also outlines the benefits of giving insurers a high level of access to rehabilitation, and encourages them to act in the best interests of the rehabilitation process.

Hadley y Przybylo

This enhanced role for plaintiff medical-negligence solicitors was examined in a recent UK Court of Appeal decision.

In Hadley v Przybylo (15 March 2024), the matter of a solicitor's duties to a catastrophically injured client were considered in the context of a costs dispute.

An appeal was brought by Thomas Hadley, represented by his litigation friend Laura McCarry, against Mateusz Przybylo, following a road-traffic accident in which Mr Hadley suffered catastrophic injuries. The key issue was whether the costs of a solicitor's attendance at rehabilitation case-management meetings were recoverable as costs in litigation. The master disallowed these costs, stating they were not incurred in the progression of litigation.

On appeal, the plaintiff's solicitor argued that the costs of attending rehabilitation case-management meetings are recoverable. The defendant acknowledged that recoverable costs can include funding the claimant's rehabilitation, but disputed the large sums incurred for attendance at routine meetings.

The court held that the costs claim falls under the `issues and statements-of-case' phase, and that these costs are recoverable in principle, based on the defendant's own concessions and guidance from the Serious Injury Guide and Rehabilitation Code. It is also noted that the plaintiff's solicitor's involvement in rehabilitation had been beneficial for both parties.

However, the court empha­sised that the recoverability of costs will depend on the specific circumstances of each case. In this case, the amount of costs claimed was seen as high and open to challenge. The court suggested that the issue of recoverability should be addressed during the assess­ment of costs by a costs judge. The court allowed the appeal on this ground, but with the caveat that the figures claimed for costs are subject to chal­lenge, and an acknowledgment that the defendant can raise reasonableness and propor­tionality arguments during the assessment stage.

The court referred to the Serious Injury Guide and Reha­bilitation Code, both of which clearly recognise that plaintiff solicitors are integral in their clients' rehabilitation. The decision reaffirmed the crucial role that plaintiff medical-negligence solicitors play in their clients' rehabilita­tion. It reemphasised that early intervention with pro­active rehabilitation, as part of the case being litigated, is considered to be in the best interests of all parties involved, not least the defendant who is to compensate the injured plaintiff.

Of more service

While there are case-management companies that offer to assist with rehabilitation of catastrophically injured plaintiffs, there is currently no duty on medical-negligence solicitors in Ireland to arrange rehabilitation or to otherwise become involved in the process. It is worth considering how we could be of more use to our clients, who depend so much on our knowledge and familiarity with therapists and medical professionals, to facilitate rehabilitation and improve outcomes.

The introduction of something akin to the Rehabilitation Code in Ireland ought to be considered. In putting the injured patient at the centre of the process and emphasising the restoration of their health, quality of life, independence, and employability, it naturally encourages earlier, more constructive engagement between plaintiff and defendant solicitors about liability. That stands to save all parties and the courts, significant time and money.

Written by Johan Verbruggen.