No need for claimant compromise
Suzanne Trask considers how far lawyers can go in seeking out novel treatments to help their clients?
The UK's first double
hand transplant hit
the headlines this summer as the latest example of technological advances helping patients. This prompts questions about when the cost of such treatment can be claimed
The compensatory nature
of damages aims, as far as is possible, to put the claimant back into the position they would have been in, had the negligence not occurred. This means that it is open to the claimant to claim the cost of
any available technology or development which an expert reports is likely to help them.
Is there a limit to this?
As encouraging as new developments are, some do
not wish to go down the road of new and radical developments. Instructions should be taken from the claimant on what they would like to claim, taking into account the full range of options available. Alternatively, some claimants may find it difficult to accept advice on the limits of what can be achieved through the legal claim.
Such new technology can
be expensive. A claim should include not only the initial
cost, but the price of ongoing maintenance and replacements or further necessary treatment during the life of the claimant.
In a claim for medical negligence, claimants must prove the difference between their underlying condition and the extra injury only suffered because of the defendant's negligence. Causation is
often disputed, as this defines the amount of injury to
Medical experts lead the
way in recovery of the cost of innovative treatments. They provide evidence to the court
on what is likely to help the claimant, taking account of the potential that it may not work or that it may actually cause their condition to worsen. There
may be a number of treatment options to meet the claimant's needs, but the type claimed
does not need to be the cheapest available.
Defendants often allege
that a claimant fails to mitigate their loss if they don't use the cheapest option. However, if a more expensive alternative is reasonable, and is supported
by expert evidence it is likely
to be recovered.
A judge ultimately decides
if this should be paid by the defendant, should the claim reach trial. The law says that
the claimant is entitled to compensation to meet their 'reasonable needs' as a result
of the negligence.
Claimants often suffer permanent injuries with many years of their life remaining. Medical advances move quickly, and novel treatments may well be standard in 20 years' time. Should the claim be already settled without provisional damages, the claimant's
award will be final with no further remedy.
A claimant should not need
to compromise on what they
are able to do. They are simply asking for the opportunity to
try to get a little bit nearer to the life that they previously had.