Continuing symptoms and undervalued personal injury claims
Where a medical expert examines a personal injury claimant whose symptoms are continuing, the expert will give a prognosis for future recovery. For most injuries, there is a typical recovery period for the majority of people. Because the prognosis is based on an average recovery period, it will not always be accurate for everyone. As compensation for an injury is assessed according to, amongst other factors, the duration of the injury, a claimant risks being undercompensated if their symptoms persist for longer than predicted.
Where possible, it is safest to wait until an injury has resolved before settling a claim. Solicitors should not put pressure on their clients to settle a claim where the client has concerns that the expected recovery time appears too optimistic. What may at first sight appear to be a straightforward, short-lived injury, can sometimes turn out to be a much more complicated and enduring problem.
In the majority of claims involving whiplash and soft tissue injuries, it is likely that the initial medical report will predict a full recovery within about a year. Where symptoms are ongoing after this period it will usually be appropriate for the expert to re-examine the claimant to revisit their prognosis or for the client to be seen by another type of expert, such as a pain expert, to account for the continuing symptoms.
The solicitor should be cautious where the original expert does not revisit their prognosis in the face of unresolved symptoms without further explanation. Some orthopaedic experts will routinely report that merely because symptoms are continuing beyond a certain timeframe that there must be some other, unrelated, explanation for the ongoing symptoms. However, such opinion does not take into account that about 15% to 20% of people who sustain a whiplash injury do go on to develop a chronic pain condition. Unless this condition is diagnosed by the right experts, then the claimant risks being undercompensated.
A claimant who has medical evidence supporting only a few months of pain following trauma, may only receive one or two thousand pounds in compensation. However, if a chronic pain condition is diagnosed, then the compensation will reflect this. I recently obtained compensation of £35,000 for a client with a chronic pain condition following a rear-end shunt accident, where symptoms are likely to persist for the foreseeable future.
We recently took over a claim for a client whose previous solicitors advised her to accept a settlement of a few thousand pounds for a soft tissue foot injury following a car accident. She has now been examined by the appropriate experts who have diagnosed a chronic pain condition, and whose reports are reflective of the debilitating nature of such an injury. The importance of early recognition of the severity of an injury and the potential for long-term symptoms or complications cannot be overstated.
This applies not only to soft tissue injuries but to all other types of injuries as well. We recently acted for a child who was injured in a car accident at about 10 months old. He was sitting in the back seat and was injured when another car crashed into the vehicle and the window smashed. He sustained lacerations to his face and glass fragments entered his eye. All overt physical injuries resolved almost completely within a few years, and the child’s previous solicitors recommended settlement at that stage. However, his parents had ongoing concerns regarding his development, and, on transfer of instructions to us, further medical investigations revealed that the short-lived physical damage to the eye had in fact had long-term repercussions on the child’s dexterity and motor skills. This was primarily because the damage occurred during a phase where visual development impacted on neurological development. As a result of thorough investigations, our client’s claim ultimately settled for a six figure sum, taking into account that some of his difficulties would endure into adulthood, compared to the likely few thousand he would have received had the claim been concluded on the basis of the cuts to his face and eye only.