While most straightforward fractures heal within a matter of months, more complicated fractures will inevitably attract a higher value of claim. In most circumstances it is best to resolve the claim before it escalates. On other occasions, however, there are complications which may have an impact on the claim as presented and which can be used in mitigation.
This article from our Spinal & Orthopaedic Special Interest Group looks at the implications when recovery is extended or complicated, and analyses what we can do to minimise the risk and costs.
The modest and severe categories of the Judicial College Guidelines, recently updated to the 18th edition, cover all orthopaedic body sites. The description in the severe categories includes risks for complications of non-union, delayed recovery and arthritis. For example, the value of an ankle injury jumps from £18,150 in the modest category to £66,140 for a severe fracture. The sums are even higher for leg and pelvis injuries. With such complications there are added costs such as impact on employment, additional care needs and treatment, and even the risk of future surgery.
It is also prudent to distinguish between complications arising through no fault of the claimant, such as pre-existing conditions affecting bone healing, and those attributes that are within a claimant’s control such as lifestyle and engagement in treatment.
Certain medical conditions can affect bone healing and lead to complications if not managed or treated correctly. These conditions include diabetes, low vitamin D levels and anaemia. The concern is focused on blood flow to the injured site. In extreme circumstances, if not treated correctly there is the risk of amputation.
The starting point is that we must take the claimant as we find them, in which case their recovery time might be longer and the patient might need additional or specialist rehabilitation.
If we are aware early on that the claimant has, say, diabetes, then we may need to consider prompt intervention by offering specialist rehabilitation to aid recovery and ensuring we have the right expert to provide an opinion. This initial early cost could minimise the outlay in the longer term.
Otherwise, mitigation comes into play. Whether this impacts our strategy depends on whether the claimant has followed all appropriate medical advice. We also need to consider whether we have the correct experts, if issued proceedings need to be amended, and whether any offers are protective. It is also important to ascertain if there is risk attached to any offers made by the claimant.
One factor which would have a significant impact on strategy is whether the treating hospital followed the correct procedures and undertook the appropriate treatment. Full medical records including surgical notes will be needed for experts to consider and give an opinion on any possible negligence on the part of any treating hospital. In such cases, there may be a need to join in the treating hospital.
Perhaps the biggest risk to bone healing is smoking which has long been acknowledged as a risk factor affecting poor bone health. Its impact on hormones, vitamin D levels and blood circulation amongst other factors, increases the risk of osteoporosis and delays bone healing following fractures. According to the National Centre for Smoking Cessation, stopping smoking has been shown to partially reverse the risk of suffering fractures in the first place.
A BMJ study assesses that smokers have twice the risk of experiencing a non-union after fracture and time for union is longer. Experts will often advise heavy smokers to stop to aid healing.
Smoking isn’t the only vice that impacts healing of fractures. The use of opioids, stimulants or steroid-based drugs, as well as heavy alcohol use, can impact the recovery time of fractures due to the weakening of bones.
This issue can be distinguished from the ‘taking a claimant as you find them’ maxim, as a claimant is expected to undergo any reasonable treatment which would include stopping smoking. This would be considered under mitigation of loss.
Again, the timing of the knowledge will impact strategy, and needs to be raised with the claimant’s experts or addressed with the defendant experts. This could significantly reduce the prognosis period and any future losses.
Regardless of the cause of complications, a claimant is required to mitigate any losses. This can be achieved by following reasonable medical advice for rehabilitation and treatment. For example, with a lower limb injury, complying with non-weight bearing on the limb for the recommended period or attending physiotherapy. Access to medical records will be required for any expert to address.
Medical records can be key. They are an important starting point to consider if there are pre-existing conditions and lifestyle complications. They will also detail the treatment undertaken.
The ideal scenario is for early disclosure, so we know the relevant issues in advance of proceedings and can arrange appropriate experts.
To some extent defendants can be on the back foot as it is for the claimant to provide their medical evidence and disclosure. In some cases, we have seen claimants not provide records until the court orders disclosure. It may be useful to keep a log of any requests for records so in the event a court application is required, or proceedings need to be amended, there is evidence that early disclosure was sought and refused.
Where the claim is well into proceedings with offers having been made, consideration should be given to amending the defence to specifically plead issues or join in the treating medical providers. Any expert will need to review all available evidence so updated medical records might be needed.
Finally, once evidence changes, a review of any offers we have made should occur promptly in case withdrawal is needed.
Jennifer Finch - Spinal & Orthopaedic SIG member
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