How to get private medical treatment after an accident
I recently acted for Miss S, a pensioner and tenant of local housing association accommodation who injured her shoulder when she tripped over uneven floor tiles in her kitchen.
These tiles had become warped by intermittent flooding. A surveyor organised by the housing association recommended that all tiles be removed and replaced, but the housing association failed to carry out the recommendation and six months later, Miss S tripped and fell.
Miss S contacted me about the possibility of obtaining compensation for her injury. As well as acting for her in a personal injury claim, I also referred her to Anthony Gold’s housing department who were able give advice in relation to ongoing difficulties with her housing situation.
I sent a Letter of Claim to the Defendant housing association who did not respond to this letter within the required three month time period. To avoid any delay in Miss S’s claim, I made an application to the Court for the Defendant to provide any documents they would be relying on in a defence of the claim. The Defendant’s insurers responded by accepting responsibility for the accident.
I organised for Miss S to be examined by a medical expert who thought it was likely Miss S had sustained a full tear to her rotator cuff when she fell. He recommended an ultrasound which I organised which confirmed this diagnosis.
The expert recommended Miss S be referred to a specialist shoulder surgeon for treatment. I organised this and the specialist advised that surgery would be the best option to improve Miss S’s symptoms.
Following Miss S’s instructions, I valued the claim which included the cost of surgery on a private basis and made an offer to settle the claim to the Defendant’s insurers.
They responded with a reduced counter offer which did not include the cost of surgery, arguing that Miss S should have the surgery on the NHS.
As a matter of law, Miss S was entitled to recover the cost of the recommended treatment on a private basis by virtue of Section 2(4) of the Law Reform (Personal Injuries) Act 1948 which states:
“In an action for damages for personal injuries (including any such action arising out of a contract), there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under [the National Health Service Act 2006 or the National Health Service (Wales) Act 2006] or the National Health Service (Scotland) Act 1947 or of any corresponding facilities in Northern Ireland.”
As such, the fact that the surgery may well be available on the NHS was not relevant. As the Defendant had caused her injury and Miss S was clear that she wished to have the surgery, she was entitled to recover the cost of it on a private basis.
I raised this with the Defendants who then made an increased offer of £23,500 which Miss S was happy to accept. As well as being compensated for her injury, she will now be able to return to the specialist and organise for her recommended surgery.