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Transparency between lawyers and insurers generates better outcome for brain injured

Eman Hassan
Eman Hassan, solicitor at Fieldfisher, and Jonathan Taylor, head of bodily injury and complex cases at First Underwriting discuss how they work together to reach more effective solutions.

Faceless insurers may often be perceived as the bad guys in the minds of the public, depriving us of the pay-out we think we deserve.

But, say Personal Injury solicitor Eman Hassan and First Underwriting's Jonathan Taylor, in catastrophic injury claims, usually following a road collision, where an innocent victim sustains neuro trauma, a shift in the relationship between some claimant lawyers and defendant insurers has made the path to settlement less thorny.

In certain firms, a pragmatic 'pick up the phone and discuss' approach has replaced mutual mistrust which proponents say puts the brain-injured at the heart of a claim, easing access to vital interim funds and ultimately more amicable final resolution.

"We've definitely moved away from the archaic view of the defendant insurer and the claimant lawyer being 'opponents' in litigation, which is not helpful to anyone, particularly the injured party," Taylor says.

"I'd rather see myself as a facilitator, not an opponent, and want to reach an acceptable resolution. I'm not in the game of denying a claimant what they deserve, but genuinely want to compensate them for the right amount.

"Even when liability is contested, it's not fatal to making progress."

Hassan says that where clients and their families have suffered a terrible event that throws them into a whirlwind of emergency rooms, medical discussions and an uncertain future, what they need is to trust that someone is guiding them through the nightmare. "If I'm at a standoff with the person holding the funds, that's just going to add to their stress."

It is well-documented that the quicker a neuro-trauma patient receives specific rehabilitation – be it speech and language therapy or daily physio - the better their outcome is likely to be. "It can be the difference between someone leading a meaningful life going forward, and not."

Most of Hassan's clients contact her within a few weeks of the accident when they're coming to terms with the long-term implications of their injuries, often encouraged to do so by NHS trauma staff. "NHS medics understand that neuro treatment is going to be ongoing and very tough and that private medical care is what's needed, beyond what the NHS can provide. And that takes money."

Once instructed and having identified the defendant insurer, Eman will always ring to speak directly to 'the other side', offering background information on the situation, the person's injuries, family and social environment. A request invoking the Rehabilitation Code is made to instruct a case manager with experience of the specific injuries. Once that is accepted, recommendations can be made, which is when Hassan asks for a face-to-face meeting with the insurer to explain the difficulties facing the client the everyday restrictions and limitations they're struggling with.

"They probably won't be able to work, will need help with children and all the everyday things they simply can't do anymore, and that's on top of trying to get better.

"The first key step to beginning the rehabilitation process is often supporting the client and the NHS with their discharge home or to a rehabilitation unit. And even if the funds aren't yet in place, we need to trust that they'll be available quickly to move things forward."

Hassan currently represents a man who was hit by a car and suffered serious brain injury and orthopaedic injuries. There was a lot of work to be done including liaising with the police to get to the bottom of what happened since, not surprisingly, the client's recollection was limited.

"It was clear he was going to need a tailor-made and specific rehabilitation programme. Jonny was proactive in providing interim funds for a programme for neuro-rehabilitation and for his musculoskeletal injuries and supporting him to be rehoused in more suitable accommodation," says Hassan.

Personal injury claims can take anything between one and three years to conclude, or even longer depending on the client's recovery, and can run into several million. If discussions break down, solicitors have to move to litigate and file the claim with the Courts to force the insurers to engage. Clearly, that prolongs the process for everyone.

Hassan's colleague recently dealt with a case on behalf of woman left severely brain injured following a road collision. "There were multiple defendants who deliberately used delaying tactics, refusing to pay anything, meaning we had to file an Interim Payment Application which took several months.

"Yes, the insurers got nine months extra before having to pay out, but the woman did not make as good a recovery as we would have hoped and, ultimately, it cost the insurers more."

Inevitably disagreements and disputes around the recommendations, the rehabilitation programmes and the heads of loss that can be claimed will exist, but at least if they're on speaking terms, each party can voice concerns and put forward their arguments. "Sensible and quick settlement also gives people some form of closure following a traumatic event," Hassan says.

And, Taylor confirms, it's generally in everyone’s interest to resolve claims promptly to keep unnecessary costs low.

"There are certain realities in catastrophic injury claims that are repeated, there are patterns and I see enough of them to recognise how a case will likely play out. This allows me to take an early and pragmatic view on the realistic future trajectory. Meanwhile, Eman will work out what she believes her client needs.

"Even if we're very far apart, with a candid relationship, both parties are able to make sensible concessions much earlier; identify core elements of likely contention and agree a strategy that will enable a sensible resolution. It's a work in progress but we all want the same thing."

Taylor previously worked at the MIB, usually a last resort for people needing help after an accident where no insurer can be found. Here, people are viewed as 'customers' rather than 'claimants', a mindset he brought with him. "Help, rather than unnecessary push back," he says.

"People can forget that insurers are human too – the catastrophy of someone's life changing forever is not lost on us. Severe neurological injuries open your eyes to what people have to injure. I go home at night and I have to come to terms with that.

"It's my role to rehabilitate, adequately compensate and ultimately resolve any potential litigation expeditiously. I like to think I've spent my day doing just that."

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