Functional Neurological Disorder defence leads to £3.5m insurer saving

Kennedys were instructed in a case involving serious physical injuries following a car versus pedestrian collision. Liability was not in issue. 

The claimant suffered complex injuries in the accident, including a mild traumatic brain injury and serious orthopaedic injuries (fractured pelvis, coccyx, and lower limb injuries), together with a constellation of secondary issues. 

In recognition of the serious injuries sustained, an offer in the region of £300,000 was tendered on behalf of the defendant insurer in December 2023. However, around this period, the claimant began to allege more serious symptoms and disability, indicative of functional symptoms on top of the organic symptomology. 

Although a rehabilitation programme had been established under the Rehabilitation Code, it was our analysis that it had become a programme not of enablement but creating dependency. The claimant’s representatives did not agree to change Case Manager and rehabilitation funding was subsequently halted. 

Our impression of functional overlay was confirmed when, upon receipt of the defendant’s medico-legal expert reports, the claimant was diagnosed with Functional Neurological Disorder (FND). There was a confused causation picture, owing to a significant history of functional somatic symptoms, and it was recognised by the defendant’s medico-legal evidence that the differential diagnosis was malingering. Our concerns in respect of the latter point were amplified (but not determined) by the claimant’s failures in Performance Validity and Symptom Validity tests administered by both neuropsychologists instructed on behalf of each party. 

An updated Schedule of Loss was served which quantified the claim at just under £3.8m. The crux of the claim was that the claimant was significantly disabled as a result of her FND, would be unable to return to work, would have lifelong care needs, and her prognosis was poor. 

Our investigation focused on two elements: determining the extent of pre-existing issues to better establish causation and detailed analysis of post-accident evidence to determine the credibility of the claimant. Concurrent with the ongoing analysis of disclosure, surveillance was being regularly conducted on the claimant. 

The outcome of the credibility investigation revealed that the functional limitations alleged by the claimant (in pleadings, to experts, and throughout the disclosure) were in marked contrast to the surveillance footage. The surveillance footage was part of a wider set of evidence in which we identified inconsistency. This in turn allowed for a forensic review and contrast of the reported function against the observed function. 

After completing a comprehensive risk analysis as to the prospects of pursuing a successful  Fundamental Dishonesty defence, we initially  served the footage along with (1) an application to rely on the footage and (2) a reminder as to the terms of the 2023 offer.  The 2023 offer was eventually accepted with the usual adverse cost consequences applying to the claimant and a saving against the Schedule of Loss of almost £3.5m.

Comment

Owing to an increased awareness within the medical community and significant media attention, we are seeing a rapid increase in personal injury claims involving FND. These claims often morph into FND having started as organic orthopaedic or cognitive related injuries. FND is a genuine condition, treated on the NHS and now features in the latest NICE rehabilitation guidelines. However, owing to the subjective nature of the condition and the reliance on self-reporting, it is a condition where credibility should always be tested. Crucially, credibility has to be tested in tandem with a deep analysis of medical causation working alongside a specialist team of experts.

Consequently, in personal injury claims where FND is diagnosed, it is key to seek specialist input from the outset (in both management of FND litigation and from medico-legal experts). This will ultimately ensure the claimant receives the most suitable treatment and the most appropriate litigation approach is taken. 

Related item: Functional Neurological Disorder and determining the appropriate therapy pathway