Notes
Emma Eccles, Co-Chair of our Brain Injury Technical Unit and Matthew Snarr, barrister at Nine Chambers, discuss the complexities of Subtle Brain Injury cases in the first of a two part podcast.
Transcript
Emma:
Hello and welcome to the second part of our subtle brain injury podcast brought to you by the Weightmans Brain Injury Technical Unit.
My name is Emma Eccles, I'm a Partner in the Weightmans Large Loss Team in Manchester and I've handled cases for over twenty years in EL, PL and RTA catastrophic injury. I'm delighted today to be joined again by Matthew Snarr a barrister from Nine Chambers in Manchester who is tier one ranked in both Chambers and Partners and the Legal 500.
Matt acts for both claimants and defendants in multi million pound personal injury claims arising from brain injuries, spinal cord and significant amputations.
Matt and I have worked together on numerous cases over the years including a number of subtle brain injury cases brought by high net worth individuals.
I think it's true to say we've seen a rise in subtle brain injury cases in recent years and subtle brain injury claims pose particular difficulties for our insurer clients.
This podcast is designed to provide a commentary aimed at defendant insurers, their insured clients and brokers and defendant solicitors on how to handle subtle brain injury claims when they arrive on their desk, how to manage the evidence, tactics and best practice.
This is the second podcast in our series looking at subtle brain injury cases and today we're going be looking specifically at what medical expert evidence may be required, the use of early offers, tactics in terms of intel and surveillance and how useful they can be in these sorts of cases, and how our insurer clients can challenge SBIs.
Matt, thank you so much for joining me again. I'd like to start today by talking about pre accident vulnerability. What impact does this have on TBI claims?
Matthew:
Well, I think that probably depends on whether you mean psychological vulnerability or neurological organic vulnerability.
Let us start with organic, and let us briefly address the concept of neuroplasticity, which is essentially the brain's capacity to reorganize pathways, recruit alternative circuits, and compensate for damage. The contention is that the brain has limited plasticity to withstand shocks and therefore may be more susceptible to injury where there have been significant shocks previously or where there have been repeated shocks as we've seen in the NFL litigation in the United States. That's potentially both relevant to the effect of the injury on the individual, but also the propensity for the individual to develop neurodegenerative conditions in later life. And, again, that's something we've seen in the NFL and now the rugby litigation taking place in the UK.
There are, on the other side of the coin, some cases where there is a significant psychological element to the claimant's presentation. And that in and of itself might be exacerbating the organic, for example, cognitive effects of the TBI or impeding recovery. If they are vulnerable, that may be more likely to be the case. It may also be a bad prognostic factor.
The key issue here is you have to take your victim as you find them, but you should be keen to understand from the pre accident records and your own experts when you instruct them, what the claimant's past history was and how that was likely to translate into a trajectory absent the index accident.
Emma:
I just want to pick up on that point, Matt, because I think it's an important one. We often have cases where there is an overlap between an organic brain injury and a psychiatric injury just because of the nature of the devastating and serious accidents that we're dealing with and it's key for us to establish, is it solely an SBI, is it solely a psych injury or is it a bit of both and if so how we separate that. But the key for us with a psychiatric reaction is exactly what you've said. What other similar life events could have caused a similar psychiatric reaction? So, deaths in the family, losing your job, failed relationships, we've got to look at that when we're looking at the psychiatric aspects.
Brilliant. Why do subtle cognitive deficits matter more in some cases than others?
Matthew:
Well, the short answer to that is, what is trivial for some is life changing for others.
So a small measurable cognitive deficit, for example, slower processing speed, weaker working memory, a reduced attention span might be trivial for some individuals but have a very significant effect for other individuals.
That is particularly relevant, where the pre injury occupation has a significant intellectual demand.
So for example, where a claimant who is a manual labourer might be able to cope with mild cognitive deficits, a barrister, for example, or a surgeon or software engineer or financial trader may find even subtle inefficiencies devastating for their career.
It's also worth bearing in mind that some people have high baseline cognitive abilities, which may initially mask the deficits.
But once the effects are understood or realized, they may be felt quite keenly by the individuals.
The environment and the support the individual has is often relevant to the overall impact of the subtle nature of the injury on the individuals. We know from the cases we deal with, some people have greater or better support mechanisms and scaffolding from either friends or family than other people do, and that may mean that some people simply just aren't going to do as well as others. And really two last points to flag up.
Firstly, comorbidities or modifiers, which are, in my experience, either concomitant medical conditions or associated injuries that were, realised at the same time. So for example, if somebody has some ongoing significant chronic pain that may interact with what is otherwise a subtle brain injury to exacerbate the effects of the injury. So is there an interplay taking place? And that can be quite controversial.
And lastly, just going back to the pre injury occupations, subtle cognitive deficits or safety critical roles can be very challenging. So for pilots, lorry drivers, doctors, machine operators, even very subtle lapses in attention or reaction time can disqualify them from continuing in their field.
Emma:
Thanks, Matt. I'm seeing a rise in cases being brought on behalf of young professionals, teachers, lawyers, people in finance and IT, as you say, where the jobs have huge intellectual demand.
And the argument by the claimant's legal team is that very subtle cognitive impact of the accident and personality change can affect the ability either to do that specific job and they have to change their career or affect their career progression in their chosen profession, and this can have a huge impact on future loss of earnings claims. With these sorts of large loss subtle brain injury cases, the cases are largely fought on the issue of loss of earnings and these cases can be very, very difficult for insurers to unpick and to challenge. You know, our tactics need to be unpicking the issues with the experts, cross referring all the medical records, OH personnel records, speaking to the employers as we've picked up earlier about what, you know, what they've seen from the claimant and what adaptations, if any, they've had to put in place at work and also, you know, what was the career trajectory but for the accident, was this the high flyer, a star performer or was this somebody who wasn't performing? So that's something really important that we need to we need to look at but we shouldn't underestimate how difficult these cases are for our insurers.
Fantastic. I'm going to move on now to looking at expert evidence.
What medical expert disciplines should we be looking at, Matt, in these cases?
Matthew:
So I feel in subtle brain injuries, there's always two core experts we should be looking to instruct. The first is the neurologist. This is the physician who is going to classify the severity of the head injury. They're going to interrogate any physical neurological issues such as headaches or any bodily consequences such as weaknesses in the limbs, etc. They're going to opine on the, prospects of any, enhanced risk of epilepsy or dementia in the future, and they're going to consider the issue, if relevant, of life expectancy. This will be the starting point for many insurers in a subtle TBI case, and it's often the first expert that a claimant will instruct as well.
Secondly, neuropsychologists. So, this individual is going to be looking at the cognition of the claimant, how the brain works, and whether the way in which the brain is working is impeded in any way. And if so, what factors might be causing that, considering the ambit of both organic and non-organic factors?
Associated with this process will be an interview and examination during which neuropsychologists will subject the claimant to effort and performance validity testing. This is an important aspect of the assessment exercise as it enables the clinician to gain a feel for whether or not the claimant is properly or adequately engaging in the exercise itself and whether, therefore, the data that is received back from the neuropsychological testing is reliable.
So those, I think, are really the two core experts. And then other experts are, if you like, either optional extras or dependent upon the particular facts of the case, some cases may need a neuropsychiatrist, particularly where there is quite significant behavioural change. This might be relevant particularly also where, for example, there are psychiatric conditions that might explain the client's presentation, such as, severe depression, very low mood, significant anxiety, trouble adjusting to either the injury or a series of injuries.
The neuropsychiatrist will help us also untangle, the different arguments between whether or not the presentation is organic or whether it's psychosocial.
In some cases where there's a degree of either schizophrenia or psychosis, this is another example of when the neuropsychiatrist will need to be engaged and in cases where there is a concern as regards capacity. But in my experience, psychosis and capacity aren't normally associated with subtle brain injury claims.
We might want to consider instructing a neuroradiologist. Normally, this is a reactive step to a claimant legal team who have already commissioned such detailed imagery. We have to be able to interpret scans, particularly the more complex scans that we just talked about in the first podcast of this series, to understand the limitations of some of the more cutting edge scans.
But equally, there sometimes is value in actually looking at the more basic scans that were commissioned at the time and understanding those in detail to understand the limitations of what they show, but also what they do show and whether something can be drawn from it. In the last few years, increasingly, I've seen associated vestibular injury claims with TBI, subtle TBI cases.
And the argument I anticipate is probably that if the organic insult was sufficient to cause harm to the vestibular system, then so too it's sufficient enough to cause harm to the brain by way of an enduring injury.
So you often see these claims presented as a dual package. This could include issues about dizziness, balancing, or associated hearing loss issues.
This, I just want to emphasize to the audience is very niche. It's specialized.
And if the claimant is intimating that they have instructed or are instructing such an expert, my view would be that it would be sensible to go like for like. There are specialist neurotologists out there or specialist neuro ENT surgeons who deal with this field and they should be instructed in those scenarios.
Emma:
Thanks, Matt. That's really helpful. I just want to add the importance of early instruction of these experts.
Such experts can look at the papers, give an initial view on whether there could be an SBI or not. Crucially, they can also advise on rehab, to help us challenge any rehab either on a joint basis, help us assess whether recommendations are reasonable and should be funded, or indeed whether claimants unilaterally instructed a rehab case manager, to challenge, the work that's going on there.
I, like you, have seen a real rise in in the need for ENT experts, and allegations of dizziness and balance and, you know, claims for future monitoring and medical treatment, which can be quite significant. Employment experts also seem to now be back in fashion. They're very relevant to subtle brain injury cases because they can talk about likely earnings in career progression but for the accident and also post-accident earnings if they're going to be lower. We need to be ready to challenge that and to, challenge in court if necessary at the first CCMC, that sort of evidence.
In cases, Matt, where the defendant is facing purely subjective personality changes reported by the claimant, sometimes with no other objective evidence, how important is the use of intel and surveillance?
Matthew:
The answer to that is it can be important, but it's not where I would start.
I would start with the review, if they've gone back to work, of the Claimant’s work records because that is a good indicator of how well they are getting on.
I would look also again at the pre accident medical records to try and track personality traits and presentations because it's surprising how often we see similar presentations prevalent post accident that were already established in the pre accident records.
If appropriate, I'd instruct a neuropsychiatrist or certainly a neuropsychologist, and I would want that, medical expert to be interviewing not only the claimant, but also be to be speaking directly to the claimant's partner or their carer or their parent to get an account directly from them in terms of what they have witnessed and experienced and what they say under questioning, from which the individual medical practitioner will know the appropriate questions to ask to understand in a more developed way, some assertions that may be being advanced.
We need to understand the three-hundred-and-sixty-degree context of the presentation. If it's going to be suggested that there isn't a cognitive deficit or an enduring or organic deficit, then what else is going on in the claimant's life that might explain their presentation? Do they have a separate physical injury that's affecting them? Do they have a sense of guilt or even anger about the accident and the injury which they've suffered? Do they have a false belief or misapprehension about the nature or extent of their injury? Has the litigation been bringing that about? Or are they still adjusting to their injuries and are still in the rehabilitation recovery phase?
I think also we need to be carefully looking at the effort and performance validity tests and asking ourselves what that tells us. All of these things need to go into the mix before, in my view, we take the step of looking at issues such as intel and surveillance.
In subtle TBI cases, surveillance is very much rolling the dice, especially as regards issues about personality changes because it's probably going to be quite limited in what you will necessarily pick up from, looking at, surveillance if you happen to come across the claimant on a particular day. That may be more relevant, for example, in orthopaedic injury cases.
Intel may be more fruitful, but, of course, that will depend on whether or not the claimant was active on social media prior to the accident and whether they remain active on social media. Here, we're looking to see, ultimately, whether or not the social media verifies the claimant's contention that there's been a significant behavioral disturbance to their presentation, which we would expect to see played out in in in certain presentations on social media or if in fact it's the converse and that the social media posts demonstrate that in fact the Claimant is still carrying out and still living a normal life, in which case that sort of evidence can have significant value.
Emma:
Yes. Insurers quite rightly nowadays require evidence of concerns about the claimant's credibility from other sources before authorising surveillance but it can be helpful in my view to demonstrate that somebody's living a normal life.
The key to future losses of course is what impact is this having on their life and on their daily life and if you see the claimant working, if you see them going on long trips on their own, driving, meeting friends, shopping, it can build a picture of someone who's living a normal life.
It can also help attack the claimant's credibility if you're cross referring the surveillance to, say, witness evidence later down the line, and it helps us as well sometimes validate the claim. So it can often actually demonstrate to us that the claimant is as significantly injured as he or she says and therefore it can help bring about resolution of the claim sooner rather than later.
Surveillance can go two ways, of course, and you're always required to disclose all the surveillance you obtain. You can't be selective. So it can help justify an offer to the claimant or, you know, a significant offer, or it could make you want to rethink and say, well, there are some concerns here about credibility.
Thanks for that, Matt. I think that's all really helpful. What is the role, if any, for early offers in subtle brain injury cases?
Matthew:
The challenge is understanding whether there is going to be an enduring TBI or not. It's easy to undervalue these sorts of cases, but equally easy to overvalue them as well.
In my view, an offer needs to be sufficient from the climate's perspective to buy off the risk that they face that they will suffer an enduring injury whilst balancing what the insurer will inevitably feel are the counterweight points as to why they think the claimant may not be able to establish that, case. Costs are always to be considered.
Early offers represent significant savings, and that, in my view, ought to be appropriately reflected by the insurer in in the right case. I think there's often a decision to make in these cases as to how that offer is to be made, whether it's to be made in what might be perceived as the more aggressive form of a part 36 offer in order to provide some early cost protection, whether it's simply an offer that's made by way of a letter, by way of a Calderbank letter, in treating, the claimant to take that that point seriously, still providing some cost protection, or whether it forms part of, you know, off the record without prejudice conversations, the offer could be made without cost consequences, providing an opportunity for the claimant to draw a line under this particular injury.
There are some cases where both sides may feel that the litigation is not helping, that there may be some uncertainties about the future, but on balance, the sums of money offered represent a reasonable, compromise of the claim based on what is known at the time that the offer is made.
It can, it seemed to me, be difficult to value, these sorts of claims. I feel they often turn, in subtle brain injury cases, on the earnings.
Care may be a factor, but it's more likely to be earnings. And that, I think, is often going to be determined by as to whether they're back in work or not.
At the lower end of the spectrum, it's easier to make an informed offer at a certain amount. There'll be a range of certain cases the insurers will have, figures that they want to advance in those sorts of cases. The loss of edge cases where you have high net worth individuals who are unable to proceed at the same level that they had done prior to the accident are more difficult to formulate offers for. But that's no reason not to make an offer because at the very least, it provides some cost protection, and that can be done either pre proceedings or simultaneously with the defence and a provisional counter schedule setting out what the insurer's case is on the particular arguments.
I just want to finish by saying courts do expect claimant lawyers to take a view. I know, I have to give advice to claimants. So, there is, in some cases, where the offer is properly pitched and properly made, there is a risk to claimants who simply, ignore the offer and bat on, on the basis that they want to continue, until some unspecified points in the future. Obviously, one has to look at the evidence at the time the offer is made, but the courts do expect claimant lawyers to give advice.
Emma:
Thanks, Matt. I think early offers on SBI cases are really useful.
The insurers of course are not just looking at claimant damages, they’re looking at overall indemnity spend. So they're looking at claimant costs and defense costs. And, of course, we know because we've just been talking about what investigations we have to do, what expert evidence we may have to get, and that can really add up particularly at the lower end of the catastrophic injury claims that we see, where sometimes costs could exceed damages. So there are particular instances where I think that an early offer is really helpful.
The first is where the claimant's legal team don't seem to recognize the risk that this is an SBI case. Clearly as the defendant insurer, we want to be putting an early offer forward as as quickly as possible before counsel looks at it.
Secondly, where there's a risk to both parties because there's a lack of objective evidence. So there is a risk to claimants in pursuing, you know, what could be overinflated claims.
And thirdly, we have to know our opponent, and the legal team on the other side is a factor that we will use in determining whether to make an early offer.
So from my perspective, you know, early offers are something we consider in every single case we get. Every time I get a file on my desk, you know, there's always a question in my mind. Is it time to make an offer? Is this the right time?
And I do think, whilst you say there are some real complexities in these cases, some cases will be suitable for these early offers as you say.
Well, thank you, Matt. I think that was really, really helpful.
Can I just ask you what your key takeaways are for our insurer clients when facing these subtle brain injury claims?
Matthew:
Thanks, Emma.
My key takeaways would be, one, early access to medical records, especially the ambulance records.
Two, scrutinize the clinical markers as we've discussed in episode one of this podcast. Are they present? If not, why not? Were they missed, or are they simply not present to be taken in the first place?
Thirdly, interview the insured and take a statement so the evidence is preserved for the future.
Fourthly, don't overlook the physical evidence by focusing too much on the medical evidence. Capture this evidence early, notwithstanding the fact that liability may be admitted.
Fifthly, seek information as to what the claimant is actually doing. Have they returned to work? Stay in touch with the with the claimant's legal representatives. Subtle brain injury cases can often lag, and there may be significant improvements taking place that you may want to be aware of because that will inform your position in terms of any offers you may or may not wish to make.
And finally, I think make a decision. At some point, an insurer will have to decide and I think really there are one of three paths they can probably follow or possibly a combination of these approaches.
One, are you going to rehabilitate? Even though it's subtle, if the impact is significant and it's being felt and you accept there is a brain injury or it's likely to be found there is a brain injury, do you want to engage in the rehabilitation process?
Secondly or, alternatively, do you want to make an offer to resolve it sooner rather than later, an early offer?
Thirdly, do you want to do neither of those, two scenarios I've suggested? Do you simply want to investigate, for the future?
So those I think are probably the three steps an insurer could take. Those are the three routes that are open to them.
Emma:
Thanks, Matt. In terms of my own takeaways, firstly, we've got to be proactive. We've got to do an early thorough investigation as you've said into the accident circumstances, getting that contemporaneous documentation, that witness evidence, obtaining all the medical and employment records. And employment records are particularly important because these cases are often brought as huge or significant future loss of earnings claims.
And cross referencing all those records for discrepancies and delays in reporting and what the claimant has said to who at what time, and is there are any differences in what he's reporting.
And also don't underestimate the importance of joint rehab in SBI cases. As you know, rehab will not be appropriate in all the cases but joint rehab where you have an influence over decision making, you have access to an MDT team, and you can affect how future losses are going to be presented. You can also help assist the claimant back to work and get adaptations arranged as part of that.
The early instruction of experts in core disciplines and, crucially, an early conference with counsel and the experts to talk through what are some, really complex medical issues in these cases.
And then lastly, as you've really well explained, the tactical use of early offers, the use of intelligence and, surveillance, when warranted, on a case by case basis.
Well, thank you, Matt. That was extremely helpful. It's going to be really invaluable advice to our insurer clients.
I'd like to encourage our listeners who haven't already listened to our first podcast, to take a listen to that, where we're talking about the definition of a TBI and an SBI and looking at those early investigations that we've been talking about.
Thank you everyone for listening.
This was a podcast with Emma Eccles from Weightmans and Matthew Snarr from Nine Chambers as part of the Weightmans Brain Injury Technical Unit.
Thank you for listening.
