Coronavirus: consequences for serious injury claims

As this is a fast moving topic, please note that this article is current as at 24/03/20. For further information, please contact Mark Burton.

The developing coronavirus pandemic will disrupt the usual processes of serious injury claims handling to an extent not encountered for several generations. Whilst this will inevitably lead to complications, we believe that there are potential solutions.

Clinicians

Social distancing, especially for vulnerable groups such as those in poor health following an accident, will inevitably impede rehabilitation efforts. On a basic practical level, case managers and therapists may have zero or restricted access to claimants. Many care homes are already in effective lockdown and no longer accepting external visitors. Health services will be taking special measures to free up resources for emergency cases, such as cancelling routine investigations and elective procedures. Both emergency and residential care providers will have to re-evaluate their discharge planning to account for health or supply chain risks in the community, including if care agencies are temporarily unable to accept new cases due to staffing contingencies.

One of the greatest impacts in relation to the claim process will be the sudden inability of many reporting experts to examine claimants, whether due to government policies, or their own employers understandably requiring them to prioritise patients over private medico-legal income. From a moral standpoint, instructing parties may agree that such expertise is better targeted at the pandemic, and could place greater reliance on treating experts regarding condition and prognosis.

Insofar as capacity remains, medico-legal experts will need to be highly adaptable, by developing their own virus protocols for safeguarding claimants’ health during examinations, and by potentially re-engineering the traditional model of physical examination or face-to-face interview. That is likely to involve remote alternatives, such as telephone or video-conferencing, supplemented by a thorough desktop review of records. It may even, in due course, be beneficial to adopt a fresh approach of potentially also reviewing family smartphone footage of the claimant undertaking exercises or relevant daily activities, perhaps pre-specified by the expert. Claimant lawyers can facilitate meaningful desktop reporting by ensuring comprehensive disclosure of medical and similar records, but also ‘lifestyle’ evidence such as bank statements or expense receipts.

Compensation

The virus is drastically impacting employers; claims professionals will need to carefully analyse earnings issues such:

  • Time off work in any event due to sick leave or precautionary self-isolation;
  • Unemployment in any event due to business rescue measures, including pay freezes, unpaid leave or redundancy schemes;
  • Any decrease in job market vacancies in a particular sector, for residual earnings purposes, or increase in others.

Similar disruption in the care sector could lead to care claims inflating, where agency cover is required (and available) to replace family or directly employed carers, or deflating in the reverse scenario where family steps in, or where vulnerable claimants turn to ‘healthtech’ solutions for home safety or independence, in order to minimise visitors. For similar reasons of health protection, compensators may face higher claims for private transport by claimants seeking to avoid the infection risks of public transport, and lower holiday claims due to travel restrictions.

These are mere predictions; practitioners should watch closely for real-world quantum contingencies probably manifesting soonest during claims in the active rehabilitation phase.

Compromises

A high proportion of serious injury claims currently settle via road-mapping, whether under the ‘Serious Injury Guide’ or otherwise, leading ultimately to a joint settlement meeting (JSM). Many such claims could arguably have settled remotely, but for the market convention of a JSM. Whilst accepting that any seriously injured person may prefer first-hand involvement and face-to-face support from their team when negotiating a final settlement of the most traumatic event of their lives, the present radical policies on social distancing will force parties to explore remote alternatives and to reality-test their pros and cons.

There are still frustratingly few online dispute resolution products in the market, and even fewer that have enjoyed high adoption levels in the face of inflexible attachment to old processes. At its simplest, a JSM might be fairly easily replicated by a series of telephone calls replacing the usual opening session and bidding rounds.

The global stock market crashes will be another factor influencing the form of award for settlement purposes and could lead to a short-term preference for periodical payments over lump sums, in order to transfer investment risks to compensators in a turbulent economy.

Compliance

Finally, the pandemic poses various challenges for professional compliance with deadlines and directions, including where business are closed or working remotely and unable to provide timely or adequate disclosure, where witnesses may be unavailable through poor health or even hospitalisation, and where experts are unable to examine.

The courts remain open at the time of writing although, in many litigated cases, requests are already being made for timetable variations and hearing adjournments. There is fortunately already a fair degree of procedural flexibility, such as telephone hearings, making orders on the papers without any hearing, and parties agreeing short extensions between themselves. It may also be prudent to seek slightly longer directions than usual, to account for ongoing uncertainty.

In contentious cases, requiring urgent case management of high-stakes issues such as costs budgeting or expert permissions, any consequential delays in judicial intervention could leave an unwelcome void. Parties have a duty to co-operate and should attempt to agree uncontroversial steps to minimise delays, and perhaps explore alternative dispute resolution solutions for resolving significant procedural disputes. Those practitioners who have experience of the ‘Serious Injury Guide process’ will be familiar with the exercise of balancing interests in order to find a workable compromise for progress’ sake.

Conclusions

We anticipate an unavoidable slow-down in rehabilitation momentum and claim life cycles, due to disruption of normal routines. The coronavirus outbreak will certainly test practitioners, but the serious injury market is resilient and has regularly shown its creativity in response to previous challenges such as discount rate uncertainty.

We have previously highlighted the widespread knowledge gap amongst clinicians in relation to rehabilitation and care innovations. Similarly, many claims processes are still relatively old-fashioned or labour-intensive for this technological age. The historic dependence on milestones such as expert examinations and JSMs are prime examples of opportunities for forward-thinking process reforms.

Fortunately both claimant lawyers and compensators have a mutual interest in ensuring the continuity of positive claims outcomes. We will need to work together to mitigate the worst effects of the pandemic on claims. The potential upside of this health crisis is a generational shift in the way that serious injury claims are managed and the adoption of modern solutions where necessity breeds invention.

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Coronavirus (COVID-19)

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