Head Injury A guide for individuals with traumatic brain injury

Head Injury A guide for individuals with traumatic brain injury and their families About Pannone Pannone is a leading law firm, with a national reputation in the field of personal injury – as recognised by independent publications The Legal 500 and The Chambers Guide to the Legal Profession. Our specialist teams handle all aspects of personal injury law – UK and abroad, to accidents at work. Our experienced and Head injury The facts and consequences • In the UK, approximately 1 million people per year attend hospital suffering a head injury. Half of these are under 16 years of age • 85% of adult patients who sustain severe head injuries and 63% of those who sustain a moderate head injury remain disabled one year after the accident • Even patients with ‘minor’ head injuries have problems: • After 3 months, 79% still have persistent headaches, 59% have memory problems and 34% are still unemployed • Only 45% of patients that have sustained a ‘minor’ head injury will have made a good recovery after 1 year from major disaster work and catastrophic injury claims both in the specialist solicitors offer a holistic approach by working together well as guiding them through the complex legal maze. injury cases, we are solicitors on the and the Spinal Injuries Association, with clients and their families to address their immediate needs, as In acknowledgement of our expertise in dealing with serious head panels of the Child Brain Injury Trust as well as members of Headway – The Brain Injury Association’s ‘Personal Injury Solicitors Lists’. This booklet provides clear and effective advice to individuals with head injuries and to their families. In addition to providing guidance about the nature of may be of assistance to those who have suffered in this way. Statistics • • • • *Source: Report of the Working Party on the Management of Patients with Head Injury published by the Royal College of Surgeons of England in June 1999. Road Traffic Accidents are the most common cause: 40 – 50% Domestic and Industrial Accidents: 20 – 30% Sport and Recreational Injuries: 10 – 15% Assaults: 10% head injuries, it lists the agencies and support organisations which 2 Head injury can have a dramatic effect on both the individual’s life and that of their family. It is important that legal assistance is sought at an early stage to investigate the possibility of bringing a claim. 3 Head injury through the brain can be damaged, allowing blood to leak. • Open or penetrating wounds These are not so common. In this type of injury the skull is open and the brain exposed. This can be due to an open wound, or collision with a sharp object. If the damage is limited to one specific area, recovery can be quite good, even though the accident may have seemed horrific. This type of injury may also be combined with an acceleration type of injury. • Crushing injuries In this type of injury the head might be caught between two hard objects, such as the wheel of a car and the road. This is the least common type of injury, and often damages the base of the skull and nerves of the brain rather than the brain itself. and its many types Traumatic Brain Injury (TBI) is brain injury caused by trauma to the head; in other words, a brain injury that is caused, initially by an outside force, but which includes complications afterwards, such as damage caused by lack of oxygen, rising pressure and swelling of the brain. A TBI can be seen as a chain of events, beginning with the first injury which occurs in the seconds after the accident and then made worse by the secondary injury which occurs in the minutes and hours after. The injury There are three sorts of injury: • Closed head injury Closed head injury is the most common type, and is so called as there is no breaking of the skin and no open wound visible. It can often happen as a result of a rapid acceleration or deceleration, e.g. when a car hits a brick wall or when a car is hit from behind whilst stationary. The head is rocked back and forth or rotated, and the brain must follow the movement of the skull. It can twist, and the millions of nerve fibres which make up the brain can also be twisted, stretched or even torn in the process. Even mild injuries of this sort can produce damage which is quite widespread throughout the brain. This is defined as diffuse brain injury. The front of the skull has a sharp bony ridge with which the brain can also collide, causing more damage. Arteries and veins running 4 The consequences It is difficult to set out the exact consequences of a head injury, as these differ in severity and kind according to where the damage occurred within the brain. Some of the difficulties that may well be experienced by individuals are: • • • • • • • • Poor memory Lack of insight Poor planning and problem-solving skills Inability to understand and communicate Poor concentration Poor perception, recognition and judgement Inappropriate behaviour Slowed responses 5 • • • • Lack of initiative Loss of physical sensations Personality changes Loss of skills in managing day-to-day affairs Rehabilitation takes many forms, depending on the nature of the disability and its severity. It could include input from the following specialists: • • • • • • • • Social workers Clinical psychologists Doctors and nurses Educational tutors Dieticians Speech and language therapists Occupational therapists Physiotherapists Even mild or moderate injuries to the brain can have quite serious effects. Rehabilitation and support If you sustain a severe head injury, it is likely that you will be hospitalised. Once your medical condition has stabilised you should then be referred to rehabilitation either as an inpatient or an outpatient. The availability of specialist brain injury rehabilitation across the UK is variable and, unfortunately, many people are not able to access the appropriate services for their disability. As your solicitor, Pannone will take an active role in working with the multidisciplinary team to provide information and advice about possible extra resources that may well be available through litigation, in particular through the rehabilitation protocol. We will work both with the resources available within the NHS as well as with the insurers (where there is a civil claim) to try to obtain maximum rehabilitation suitable to the individual’s needs at an early stage. Our aim is to ensure that the individual receives the best possible outcome for their injury. 6 Long-term support Depending on the severity of the head injury, a number of people require long-term support throughout their lives. The local authority may well provide care and support to families and individuals who have sustained a severe head injury; alternatively, funding may well be available through your personal injury claim. The aim of this support is to enable the individual and the family to live as independently as possible. Schemes providing care and support may necessitate the involvement of the following individuals: • Case manager • Support worker • Rehabilitation worker 7 Seeking legal advice Legal advice should be sought at an early stage even if you are unsure as to whether you are entitled to claim compensation. This will enable us to collect and obtain information whilst memories are still fresh. If it is not possible to proceed then it will at least give you the reassurance that you have sought independent legal advice and explored the possibility of a legal claim. Compensation may even be available when it would appear that the injured individual was perhaps at fault, or where it appears that the other party has no means to pay i.e. hit and run drivers, uninsured drivers and cases of assault. It is therefore important to seek legal advice in all cases. The legal process can be long and complex. It would be our aim, as your solicitor, to simplify the process so that you can understand all the steps taken at the various stages. In addition to providing help and assistance in your personal injury claim, we may also be able to give advice on related employment issues and benefit matters. obtain information so that we may assess your claim with a view to giving you advice about the viability of bringing a claim. As Legal Aid is no longer available, there remain a number of funding options: • Legal Expenses Insurance This applies if you are covered by a policy i.e. home insurance. • ‘No Win, No Fee’ agreement We would enter into a Conditional Fee Agreement – ‘No Win, No Fee’ agreement with you at no cost. This would mean that, if your claim was unsuccessful, you would pay nothing towards the cost of your claim. • Membership legal assistance This applies if you are a member of a Trade Union, a membership organisation (e.g. AA or RAC) or friendly society. • Private funding This option is only normally considered if none of the above options are available. Usually, we would advise clients to take out a policy of insurance to protect themselves against the risk of paying costs to the defendants. At the first meeting, we would seek to explain the various funding options detailed above in more detail. 9 Legal costs Pannone offers a free initial no-obligation consultation to all potential clients. In this initial interview we seek to advise you whether or not your claim is worth pursuing. If it is not possible to determine this at the initial interview then we will take steps to 8 Compensation Once an assessment has been made as to whether or not there are reasonable prospects of success, we will seek to move forward to obtain the evidence necessary to support your claim. Compensation itself is assessed under various categories. We set out below some of the various heads of damage that the court will assess in individual cases: • General damages These are awarded for pain, suffering and loss of amenity, and therefore compensate for the actual injury sustained. The amount of compensation awarded to an individual will depend on the nature and extent of the injuries sustained and upon the likely long-term effects. Guidelines – known as ‘The Judicial Studies Board Guidelines’ – are published by the court to assist in determining the level of award. Once in possession of the relevant medical evidence, we should be in a position to advise you as to the likely level of award in your particular case. • Damages for financial losses This part of your compensation is known as ‘special damages’. In the majority of cases, these far exceed general damages. This category covers a number of possible scenarios, including, but not restricted to: • • • • 10 • • • • Damage to motor vehicle Pension loss Accommodation Care Interim payments Special damages will cover both those expenses that have already been incurred, as well as future costs and expenses. Depending on the nature and severity of the injury, claims for head injuries can take a number of years to conclude. This is because the recovery period from a head injury is lengthy and the claim cannot be finalised until the medical position is stable. Once liability has been conceded, either by obtaining Judgement or alternatively by agreement with the other side, it is normal to obtain payments on account of damages. This enables persons who are injured to obtain part of their damages before conclusion of the case. By obtaining interim payments it would allow us to assist you with your day-to-day expenses or alternatively to provide funds to put in place care or purchase accommodation. You may also need interim payments to pay for rehabilitation, transport or other matters. Some insurance companies will make a voluntary interim payment at an early stage of the claim, before the issue of proceedings at court. In other cases, this may not be possible. Whilst we will always seek to obtain an interim payment early on to assist the claimant and their family, it is not always possible. It is, however, part of our philosophy that, where an interim payment can be obtained, we will seek to do so. 11 Loss of earnings (Net of Tax and National Insurance) Private medical or therapeutic expenses Aids and equipment Travelling expenses Court of Protection Where people have suffered severe head injuries and are unable to manage their own property and affairs, the law requires us to involve the Public Guardianship Office, otherwise known as the Court of Protection. Its role is to oversee the settlement of both liability and the level of damages, as well as ensure that monies received are spent in a fit and proper manner. Within Pannone we have a strong Court of Protection team which is able to advise individuals and family members on all Court of Protection matters. This team is able to provide advice on Wills and Tax Planning, as well as offer a Professional Receivership service. Dealing with matters on behalf of a seriously injured person where a number of professionals are involved is a complex and timeconsuming matter. The involvement of a Professional Receiver and our Court of Protection team is aimed to assist families and provide a full service covering all aspects of the claim. We are also able to provide help and assistance with regard to financial planning through our Financial Services team. Our overriding objective is to ensure that your financial affairs are prudently managed for the long-term provision of any care and support that may be required. Time limits There are strict time limits for pursuing claims for compensation. Normally, a claim for damages must be brought within three years of the date of the accident. If the claim is not brought within the above timescale then the court may decide that it is out of time. Whilst this three year time limit is strictly enforced, there are some exemptions. In those circumstances, we would suggest that advice is sought in all cases as to whether there is a prospect of being able to bring a claim. What happens next? After you have contacted Pannone, we will arrange an appointment with you, be it at your home or at our offices. We may ask you to bring any documentation that you have regarding the circumstances of the accident to assist in our initial investigations. If necessary, further evidence by way of a report from an Accident Investigator, or alternatively photographs and a sketch plan of the accident site, may be obtained to assist in determining whether there are reasonable prospects of succeeding with a claim. Once a full investigation of the circumstances has been completed, we will advise you about the prospects of success in your particular case. 12 13 If we decide that there are reasonable prospects of succeeding with a claim, we will then contact the responsible party and their insurers. Where an insurer is in place – or in cases involving uninsured or untraced drivers, the Motor Insurers’ Bureau – they will deal with the claim. Whilst some insurance companies may choose to pay compensation and volunteer interim payments on account of the final damages, some insurance companies may not. In cases of dispute, it may well be necessary for us to take steps to issue proceedings. Should this be the case, we will liaise with you and make you aware of the position so you are fully informed throughout the legal process. The vast majority of cases are negotiated and settled prior to a final hearing at court. As solicitors, however, we have to safeguard your interests by preparing the case as if the matter will ultimately proceed to a final hearing. Preparing a case for court can be timeconsuming and may take a number of years to conclude. It is often in your best interests to wait until time has expired so that the medical experts are able to assess the full nature and extent of your injury and its effect upon your life. It is only once this has occurred that proper compensation can be obtained for your future needs. Conclusion It is impossible to set out in any great detail the law relating to head injury claims in a short document such as this. It is a highly complex area of the law, but we hope we have given you some initial information. If you have any further concerns or questions then please do not hesitate to contact us via law@pannone.co.uk or on 0161 909 3000. Useful contacts Brain and Spine Foundation 7 Winchester House Cranmer Road Kennington Park London SW9 6EJ Telephone: 020 7793 5900 Helpline: 0808 808 1000 Fax: 020 7793 5939 E-mail: helpline@brainandspine.org.uk Website: www.brainandspine.org.uk 14 15 Brain And Spinal Injury Charity (BASIC) The Neurocare Centre 554 Eccles New Road Salford M5 5AP Telephone: 0161 707 6441 Fax: 0161 206 4558 E-mail: enquiries@basiccharity.org.uk Website: www.basiccharity.org.uk British Epilepsy Action New Anstey House Gate Way Drive Yeadon Leeds West Yorkshire LS19 7XY Helpline: 0808 800 5050 Fax: 0113 391 0300 E-mail: epilepsy@epilepsy.org.uk Website: www.epilepsy.org.uk The Child Brain Injury Trust Unit 1 The Great Barn Baynards Green Nr Bicester Oxfordshire OX27 7SG Telephone: 01869 341075 Helpline: 0845 601 4939 E-mail: helpline@cbituk.org Website: www.cbituk.org Disabled Living Foundation (DLF) 380-384 Harrow Road London W9 2HU Telephone: 020 7289 6111 Helpline: 0845 130 9177 (Opening times 10.00am – 4pm Monday to Friday) Textphone: 020 7432 8009 E-mail: info@dlf.org.uk Website: www.dlf.org.uk Headway – the brain injury association 4 King Edward Court King Edward Street Nottingham NG1 1EW Telephone: 0115 924 0800 Helpline: 0808 800 2244 Fax: 0115 958 4446 Website: www.headway.org.uk Headwayhouse Manchester Withington Methodist Church 439 Wilmslow Road Withington Manchester M20 4AN Telephone: 0161 434 2150 E-mail: headwayhouse@waitrose.com Website: www.headwayhouse.com 17 16 Independent Living Funds PO Box 7525 Nottingham NG2 4ZT Telephone: 0845 601 8815 Fax: 0115 945 0945 E-mail: funds@ilf.org.uk Website: www.ilf.org.uk Mobilise (formerly Disabled Drivers’ Association) Ashwellthorpe Norwich NR16 1EX Telephone: 01508 489449 Fax: 01508 488173 E-mail: enquiries@mobilise.info Website: www.mobilise.info Motability Warwick House Roydon Road Harlow Essex CM19 5PX Telephone: 01279 635999 Fax: 01279 632000 Minicom: 01279 632213 Website: www.motability.co.uk Speakability 1 Royal Street London SE1 7LL Telephone: 0207 261 9572 Helpline: 0808 808 9572 Fax: 0207 928 9542 E-mail: speakability@speakability.org.uk Website: www.speakability.org.uk The Mobility Information Service 20 Burton Close Dawley Telford TF4 2BX Telephone: 01743 340269 E-mail: mis@nmcuk.freeserve.co.uk Website: www.mis.org.uk 18 19 Manchester M3 2BU 123 Deansgate Pannone LLP Fax: 0161 909 4444 law@pannone.co.uk www.pannone.com Tel: 0161 909 3000