Bill Braithwaite QC argues that victims' rehabilitation lies not only in the hands of medics, but also in the actions of lawyers. Bill Braithwaite QC practises from 2 Crown Office Row, London, and Exchange Chambers, Liverpool. He is consultant editor of Kemp & Kemp, The Quantum of Damages.
In recent months there has been considerable criticism of the lengthy and expensive legal process involved in managing personal injury claims. Not surprisingly, cases where individuals have to wait many years for multi-million pound settlements cause concern.
For some victims the reality is even worse than this. The mismanagement of claims means that many never receive the expert help or financial resources they need to achieve maximum rehabilitation. The abolition of legal aid in personal injury cases is unlikely to improve the situation. It is now, therefore, essential that those of us closely involved in the arena of catastrophic brain and spine injuries lead the way in delivering adventurous and efficient management of claims.
Not only are we in a position to deliver a more efficient process, we can, most importantly, play a key role in ensuring each individual achieves his or her full potential. To do this we must put the victims first, treat them with courtesy and dignity, and work towards an outcome that both the plaintiff and defence believe is just.
Lawyers do not always realise that they have a crucial role to play in the rehabilitation process by pulling together, at an early stage, all the professionals who will help an injury victim rebuild his or her life. While doctors know what the patient needs, lawyers can often make it happen.
It is quite possible that, within three months of catastrophic accidents, further acute medical intervention is unnecessary and patients can return home. However, if compensation has not been made available (through an interim payment) their homes will not be ready. Consequently they may spend many more months languishing in hospital than they need to – the psychological impact of which can be permanently damaging.
Lawyers must play a key role in ensuring the process of rehabilitation starts at the earliest possible stage. To do this, they must become specialists in the medical aspects of disability.
But the lawyer does not act alone. As soon as possible a multidisciplinary team needs to be established, which will include solicitor, specialist personal injury barrister, doctors and rehabilitation specialists. At the centre of the team is the victim who needs to be consulted at every stage. Disability affects each person differently and it is a mistake to believe that each victim reacts in the same way and has the same potential (or lack of it) for rehabilitation.
Early multidisciplinary consultation of this type is unfortunately not common, probably because of the cost. However, in catastrophic brain or spine injury litigation, it is essential, and can be cost-effective. The vital ingredient is teamwork so that all the specialists involved can come together to produce an effective whole.
A good example of teamwork is where a plaintiff spends a day being examined by a variety of medical experts, all of whom liaise with each other and whose reports are then considered and commented on by the expert in overall charge.
It is common in building disputes for the experts to meet to discuss the issues. This approach is becoming more common in personal injury litigation and is an approach which should always be considered. Meeting at an early stage to define the areas of agreement and disagreement – and the reasons for disagreement – can be a very effective way of eliminating unnecessary argument.
Another possible route is to instruct one expert jointly. This is rarely – if ever – done, probably because lawyers are worried about losing control and possibly because there is not perceived to be a suitably large pool of truly independent specialists. However, in the areas of brain and spine injuries there are many consultants who could admirably fulfil the role of a single independent expert.
In putting together a claim for compensation it is absolutely essential to plan for life. This means taking a critical look at how the injured person's needs will change as time passes. It also means talking to the individual involved. The plan must cover all the foreseeable eventualities of the plaintiff's life in a way which is acceptable to both them and their family. It must, at the same time, be a sensible and reasonable use of money.
I believe that we should all, both plaintiffs' and defendants' lawyers, strive for a good quality of life for the injured victim, not simply aim for the minimum required to sustain life.
This makes sense for defence lawyers too, because a plaintiff with a good quality of life is likely to be more able to work and is less likely to need extensive care, than one who is dissatisfied and unhappy.
It is our job to recognise the problems and the possibilities – to guide the victim and his or her family through the legal and medical maze to facilitate full rehabilitation. An innovative, victim-centred and multidisciplinary team approach can deliver this and lawyers are pivotal in making sure it happens.