A claim for future medical developments in spinal cord injury

There have been significant advances in medical research in traumatic spinal cord injury (SCI) over the last few years, however we do not yet have any curative therapies to assist those who have been left with serious spinal cord injuries which affect every aspect of their daily living.

The World Health Organisation currently estimates that between 50-80 million people world-wide are affected by this condition to varying degrees and levels depending on the nature and level of the spinal cord which has been damaged. 

Future clinical trials

So how far are we from clinical trials? The answer is neither straightforward nor certain. There has been a lot of research recently into neuroplasticity in acute and chronic phases and in biomarkers to consider severity of injury, trajectory of recovery and possible responsiveness which could assist in further clinical trials. 

Those who have been injured simply want to know – could functional recovery, whether partial or full, ever be achieved?  Clinical trials in neuromodulation are expanding particularly in the area of spinal cord injury and combinations of brain stimulation and non-invasive rehabilitation techniques are being used to promote functional recovery. Nothing is yet certain and as with medical science and research, given the safety measures which need to take place, this can take time.  

'Future proofing' personal injury cases

So what do we do for clients who have been injured now and have cases ongoing?

Again, the solution is not so simple.  A claim for provisional damages for the future, so that a claimant can go back in the future once their claim is settled to claim further damages if their injuries deteriorate, is possible but not often awarded depending on the reasonableness of the risk of future deterioration. 

But this is different – what about if future medical advances mean that clients could opt to have future medical treatment which would improve their functional position but are currently not medically possible? And given that a certain amount of 'crystal ball gazing' must be done, how do we show that a client would be medically fit for any such treatment in the future? 

Indemnity agreements with defendants have been used for some time now for possible future immunotherapy for those who have been diagnosed with mesothelioma, so why not apply the same principle to those with SCI claims?  

There have been cases in the last few years such as Carter v Powys Local Health Board and Others where the private costs of a future heart transplant have been claimed by way of indemnity, so that the claimant could look to have a transplant some 15-20 years into the future, even though there was uncertainty over whether at that age she would be medically fit to undergo the procedure. 

It gives the claimant certainty to know that should these medical advances for functional recovery in spinal cord injury be available in the future they would have the finance available to fund this treatment if they are deemed medically fit to undertake it. While many defendant insurers would no doubt be reluctant to commit to accepting such a claim given the uncertainty by way of lump sum; the simple solution could be for a defendant to provide an undertaking to meet the cost of private treatment in the event of the NHS being unable or unwilling to provide funding. 

This would be conditional, provided the treatment for SCI was recommended by a consultant in spinal cord injuries and maximised clinical effectiveness in whatever location it was recommended to be given (which would allow for treatment abroad if this were further advanced than in the UK). 

Any dispute over the appropriateness of treatment could be dealt with by urgent arbitration with a specified time limit after the recommendation is made so that prompt treatment is not delayed by paperwork and bureaucracy. 

Fair and reasonable compensation

While insurers do not like ongoing liabilities, given the advent of periodical payments this should no longer be a barrier to compensating the claimant in a fair and reasonable way which allows this opportunity for their lifetime and in accordance with advances in medical science. 

The recent pandemic and the speed at which vaccines were deployed, shows the valuable dedication of our medical professionals in finding solutions to even our most significant medical conditions.

In my view, we should be considering whether this is something we can incorporate for our spinal cord injured clients for the future, now.

Find out more about Irwin Mitchell's expertise in supporting people following a spinal injury at our dedicated spinal cord injury claims section.