Compensation for prosthetics: counting the cost

Modern technology and advances in medical sciences have helped develop a new generation of prostheses, for both upper and lower limb amputees. The purpose can be cosmetic or functional (or both). Often the question arises as to whether the court will allow the cost of prosthetics, and if so to what extent.

In the case of Miller v Imperial College Healthcare NHS Trust the claimant underwent a below knee and then above knee amputation following negligent treatment at the hospital. She claimed the cost of an expensive sophisticated prosthetic leg and a cheaper (reserve) leg.

The claimant, age 63 at the time, argued for her more sophisticated limb on the basis that compared to the cheaper NHS version (argued for by the hospital) it felt lighter, enabled her to move better, increased her stability and limited the risk of falls and water blisters. She provided the court with DVD evidence showing the judge a range of activities performed with the limb she contended for, compared to the one contended for by the hospital.

The judge said “in every respect in which a test was performed [the more expensive limb] was significantly more effective in restoring the mobility and confidence which the claimant would have had before the injury. Neither limb, of course, is in any way a substitute for the lost leg.”

In making his decision, the judge was guided by the approach taken in A v Powys Local Health Board which confirmed that the basis of assessment is the test of reasonableness. A claimant, it was said, is entitled to damages to meet her reasonable requirements and reasonable needs arising from her injuries, following an objective assessment. Accordingly, if the treatment claimed by the claimant is reasonable, it is no answer for the defendant to point to cheaper treatment which is also reasonable. In determining what is required to meet the claimant’s reasonable needs, it is necessary to make findings as to the nature and extent of those needs and then to consider whether what is proposed by the claimant is reasonable having regard to those needs.

In favouring the claim for the more sophisticated limb, the judge in Miller held that the claimant was entitled to prostheses which put her more closely in the same position as she would have been had she not suffered the amputation.

There is good argument therefore that claimants who are claiming the cost of better and more expensive artificial limbs should recover the same. Evidence to support the need gives the claimant a greater chance of a decision in their favour. Provided the claim is reasonable, the court’s objective assessment is likely to fall in their favour and rightly so given the serious nature of the injury sustained.

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