What Solicitors Need to Know

In serious personal injury and clinical negligence claims, care can represent one of the most significant elements of a claimant’s future needs.

Where an individual has sustained a catastrophic or life-changing injury, the question is rarely limited to the support they require today. Consideration may also need to be given to how those needs could change over time, who should provide the support, how it might reasonably be delivered and what it is likely to cost.

This is where Care Expert Witness evidence can play an important role.

A well-matched expert can help provide a clear, independent assessment of the practical consequences of injury and the care and support that may reasonably be required.

What does a Care Expert Witness assess?

A Care Expert Witness provides independent opinion evidence concerning an individual’s care, support and associated needs.

The precise scope will depend on the nature of the injury and the issues within the claim, but an assessment may consider:

• Personal care and activities of daily living.
• Domestic assistance.
• Overnight care or supervision.
• Support with medication and healthcare routines.
• Community access.
• Support with education, employment or meaningful activity.
• Cognitive or behavioural support.
• Assistance required because of fatigue, pain or psychological difficulties.
• Support worker or personal assistant provision.
• Respite and family support.
• Case management requirements.
• Equipment and assistive technology.
• Transport requirements.
• Future changes in care associated with ageing or deterioration.
• The cost of implementing an appropriate care package.

The assessment is therefore concerned with more than simply recording the support currently in place.

It considers the claimant’s functional abilities, the consequences of the injury and the nature and extent of assistance that may reasonably be required.

When might care evidence be required?

There is no single point at which a Care Expert Witness should be instructed.

Care evidence is often relevant where it is apparent that an individual is likely to require substantial or long-term support, including in cases involving:

• Brain injury.
• Spinal cord injury.
• Cerebral palsy and birth injury.
• Amputation.
• Complex orthopaedic injury.
• Neurological injury.
• Significant psychological or behavioural consequences.
• Chronic pain.
• Multiple trauma.
• Injuries resulting in substantial loss of independence.

Timing can be important.

An assessment undertaken at an early stage may take place while rehabilitation is still progressing and before the claimant’s longer-term position has become clear. Equally, leaving consideration of care needs until late in the litigation may make it more difficult to investigate significant areas of future need properly.

The appropriate timing will therefore depend on the individual case, the available medical and rehabilitation evidence and the questions the expert is being asked to address.

Current care and future care are not necessarily the same

One of the important distinctions in serious injury claims is between the care currently being provided and the care that may reasonably be required in the future.

A claimant may, for example, be receiving substantial unpaid support from relatives. In other cases, a care package may have developed in response to immediate circumstances rather than through a structured assessment of longer-term need.

Current arrangements may therefore provide valuable evidence, but they do not necessarily determine the appropriate future model.

Relevant considerations can include:

• Whether family members are providing significant informal care.
• Whether current arrangements are sustainable over the longer term.
• Whether greater independence could reasonably be achieved.
• Whether rehabilitation is likely to change the level of support required.
• Whether needs may increase as the claimant ages.
• The impact of accommodation on care requirements.
• How a professional support package might operate in practice.

This can be particularly important where family members have gradually assumed extensive caring responsibilities following an injury.

Arrangements that develop naturally during an immediate period of need may not necessarily remain appropriate or sustainable over many years.

Translating clinical need into everyday life

Care evidence often sits at the point where clinical opinion meets the practical realities of everyday life.

Medical experts may identify physical, cognitive or psychological impairment. Therapy experts may recommend treatment, equipment or strategies to improve function. Care evidence considers how those findings translate into practical assistance and support.

This is not necessarily a simple calculation of hours.

An individual may, for example, have the physical ability to complete a task but struggle to do so safely or consistently because of fatigue, pain, impaired executive functioning or behavioural difficulties.

Another person may require supervision or prompting rather than direct physical assistance.

The nature of the care package can also vary considerably. One claimant may benefit from continuity provided by a small support team, while another may require a more extensive arrangement capable of meeting needs throughout the day and night.

The underlying question is therefore not simply how much support is required, but why it is required and how it can reasonably be delivered.

The relationship between care evidence and other expert disciplines

Complex serious injury claims frequently involve evidence from a number of professional disciplines.

Depending on the case, this may include occupational therapy, physiotherapy, neuropsychology, neuropsychiatry, neurology, rehabilitation medicine, speech and language therapy, accommodation, assistive technology and care.

Some degree of interaction between these areas is inevitable.

The important issue is ensuring that the evidence remains clear and that unnecessary duplication is avoided.

A Care Expert Witness may take account of recommendations made by other experts while considering how those recommendations affect the claimant’s practical support requirements. Equally, certain matters may properly remain within the expertise of another discipline.

Clear instructions and appropriate expert matching can help ensure that each expert addresses the questions relevant to their own professional expertise and that the evidence fits together coherently.

Care Expert Witness and Case Manager: distinct roles

The distinction between a Care Expert Witness and a Case Manager is also important.

A Case Manager is involved in the claimant’s rehabilitation and day-to-day circumstances. Their role may include coordinating treatment, communicating with professionals, developing support arrangements and helping to implement rehabilitation plans.

A Care Expert Witness has a different function.

The expert is instructed to provide an independent opinion for the purposes of the litigation.

That opinion should be based on the expert’s own assessment, professional expertise and the evidence available rather than simply reflecting the existing care package or the recommendations of those involved in the claimant’s rehabilitation.

Case management records can nevertheless provide valuable evidence.

They may help demonstrate:

• The claimant’s functioning over time.
• Rehabilitation progress.
• Changes in support needs.
• Difficulties encountered in implementing care arrangements.
• Family involvement.
• Recruitment and retention of support workers.
• The effectiveness of existing support.

The roles are therefore different, but information arising from case management can provide useful context for an independent expert assessment.

Independence and transparency

Independence sits at the heart of expert evidence.

This is particularly significant in serious injury claims where care recommendations can represent a substantial element of quantum.

An expert’s opinion should not depend upon whether they are instructed on behalf of a claimant or defendant.

This does not mean that experts will always reach the same conclusion. Differences of professional opinion are inevitable in some cases.

What matters is that the reasoning behind the opinion is clear.

A well-constructed report will usually identify:

• The information considered.
• The assumptions relied upon.
• The claimant’s identified functional needs.
• The reasoning behind particular recommendations.
• Any alternative care models considered.
• The basis upon which costs have been calculated.
• Areas where the expert has relied upon evidence from another discipline.

Transparency in the reasoning can be as important as the final figures themselves.

Claimant and defendant instructions

Care experts may be instructed on behalf of claimants, defendants or as part of joint expert arrangements.

The expert’s overriding responsibility remains the same.

For claimant representatives, care evidence may help identify needs that are currently being met informally or which have not yet been fully addressed.

For defendant representatives, an independent assessment may help determine whether the proposed level and structure of care are supported by the functional and clinical evidence.

In either situation, the purpose of the evidence is to provide a reasoned and independent assessment of the claimant’s needs.

A strong expert should be capable of identifying both under-provision and over-provision where the evidence supports that conclusion.

Information that can assist the care assessment

The quality of an assessment will inevitably depend in part on the information available to the expert.

Relevant documentation may include:

• Medical records.
• Medical expert reports.
• Therapy reports.
• Case management records.
• Rehabilitation plans.
• Care agency records.
• Support worker records.
• Occupational therapy assessments.
• Education or employment information where relevant.
• Witness statements dealing with care and assistance.
• Details of the current care package.
• Information concerning accommodation.
• Relevant schedules or counter-schedules where available.

A clearly defined scope can also help ensure that the report remains focused on the issues within the case while allowing the expert to identify matters that become apparent during the assessment.

Matching the expert to the issues in the case

Professional qualification is an important consideration when selecting an expert, but it is only one part of the picture.

The expert’s actual experience should reflect the claimant’s presentation and the questions they are being asked to address.

Relevant factors may include:

• Professional background and registration.
• Experience with the relevant clinical population.
• Knowledge of catastrophic injury and rehabilitation.
• Experience assessing complex care packages.
• Understanding of support worker and care-provider models.
• Knowledge of care costs and the practical realities of recruitment.
• Expert witness training and experience.
• Report-writing capability.
• Experience of joint statements and expert discussions.
• Ability to provide clear oral evidence where required.

The most appropriate expert will depend upon the particular circumstances of the case rather than professional title alone.

Care evidence should reflect the individual

Two people with apparently similar injuries may have very different support requirements.

Age, cognition, psychological presentation, family circumstances, accommodation, rehabilitation potential, personal goals and social environment can all influence care needs.

Effective care evidence therefore requires an individual assessment.

The objective is not to fit a claimant into a predetermined model of care, but to understand the practical consequences of the injury and to provide a reasoned opinion on the support that may reasonably be required.

In serious injury litigation, care evidence can provide an important bridge between clinical prognosis and the realities of everyday life following catastrophic injury.

At Harrison, our Expert Witness service provides access to experienced professionals across a range of disciplines involved in serious injury and clinical negligence claims. Our focus is on appropriate expert matching, independence, clear professional reasoning and evidence that properly addresses the issues within each individual case.

How Harrison Associates supports solicitors

Harrison Associates provides Expert Witness and Case Management services for solicitors handling serious injury, catastrophic injury, complex personal injury and clinical negligence claims.

Our Expert Witnesses provide independent opinion on function, rehabilitation, care, therapy, prognosis and future needs. Our Case Managers coordinate rehabilitation, support injured people and families, liaise with professionals and help ensure practical needs are identified and addressed.

Where a claim requires clear evidence, structured rehabilitation input or a better understanding of future provision, Harrison Associates can help solicitors identify the right expertise at the right stage.

To discuss expert witness evidence or case management support for a serious injury claim, contact us today.  

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