Hadley judgement: Should lawyers attend Multi-Disciplinary Team meetings?

The judgment in Hadley v Przybylo was handed down by Master McCloud in June this year and has reignited discussions around the recoverability of legal team attendance at Multi-Disciplinary Team (MDT) meetings.

In our capacity as serious injury legal experts acting for claimants, MDT attendance can play an important role in case progression. Below we have considered this recent update in case law against the backdrop of the importance of MDTs and any potential impact/considerations in practice.

Case law 

In Hadley, the claimant’s legal team stated that MDT attendance acts as a ‘live feed’ from the claimant’s medico-professional team and helps to ‘progress litigation’. They suggested that attendance assists when updating the schedule of loss and understanding the claimant's progress.

The defendant’s legal team countered this by suggesting that attendance at MDT meetings should be ruled as non-progress in respect of whether the associated costs ought properly to be included in the budget and that attending the meetings would be ‘as progressive to litigation as the legal team joining every medical appointment.’ The defendant also argued that attending MDTs does not fall within time phasing guidance.

Upon hearing the parties, Master McCloud remarked that fee earner attendance at MDTs was not progressive, didn’t fall within the 'notion of costs' and that 'arguing that attendance was an integral part of producing the schedule of loss' was a weak argument.

Key considerations

Hadley raises food for thought. Despite arguments around the progressive benefits of MDT attendance, Master McCloud was unsympathetic. This raises potential risks to claimants when trying to recover the costs of their legal team attending MDTs, should defendants choose to raise Hadley. Furthermore, claimants may now be vulnerable to arguments when budgeting cases that the costs of MDT attendance should not be included as either a past or future costs.

So what now?

Benefits of a solicitor attending an MDT 

From experience, we view there to be multiple benefits in having a member of the legal team at an MDT meeting:

• Progress against the claimant's holistic specific goals after serious injury can be measured and tracked;
• Further support needs of both the claimant and the rehab team can be factored in and actioned;
• Funds can be closely monitored;
• It fosters good relationships between the treating and legal teams, assisting with a unified approach;
• It allows accurate monitoring of the claimant's injuries and updated condition and prognosis;
• It creates an open space for all professionals to address any sensitive issues with the claimant's treatment and ensure that they are received by the legal team;
• Defendant presence at an MDT meeting is often received very positively by claimants. It reinforces the message that litigation is a collaborative process and helps in breaking down any negative perception of the defendant's legal team, should this be an issue in the litigation;
• It's a helpful forum for medical professionals to ask questions and gain valuable insight into the legal process, which will in turn feed into better management of the claimant on the ground and help with supporting them through difficult patches through the litigation;
• It's a way of obtaining emerging areas of disagreement, ensuring that key trends relevant to mitigation of loss are managed;
• It assists in maximising recoverability by acting in the best interests of the claimant, ensuring interplay between Part35 experts and treating clinicians/ therapists.
• It helps with managing the need for interim payments, ensuring they are justifiable and reasonable.

Despite rehab teams providing comprehensive update reports, attendance at MDT meetings gives an unfiltered and transparent insight into practicalities on the ground and the claimant and the team's feelings towards the meetings.

Following MDT attendance, rehab can be reviewed between the parties with a full and accurate view of the landscape and then guided to ensure maximum recoverability and benefit to the claimant. Discussions around funds can take place with more accurate forecasting around the need for any further interim payments.

When discussing the issue with recognised specialist rehabilitation case manager Jason Chidwick, he explained: "From a case managers perspective, including the claimant solicitor (plus the defendant in jointly instructed cases) in MDTs is vital to ensure clarity regarding the on-going rehabilitation. It allows them the opportunity to liaise directly and ask any specific questions to the treating team, which is quicker/easier than asking the case manager who asks the treating clinician and then returns to the solicitor. 

"It also gives the solicitor a better understanding as to the treatment being provided and more information of further recommendations etc that might not be mentioned in much detail in update reports. The main focus of the full MDT and solicitor is the client, and therefore allowing the solicitor to attend all of these MDTs is important to ensure everyone is singing off the same hymn-sheet so to speak and there is no confusion etc around treatment/rehabilitation and usually allows for a more seamless approach to rehabilitation."

The comments in Hadley appear to put the points above at risk, suggesting that there may now be further considerations necessary before attending an MDT in a post-Hadley landscape. 

Tips around increasing recoverability when attending MDTs

As set out above, many legal representatives attend MDTs to be kept up to date with the claimant’s progress in order to assist with the litigation. We have formulated some helpful tips to consider when approaching an MDT meeting, which may in turn maximise benefit to the parties throughout the litigation and recoverability at conclusion of the claim:

• MDTs are a vital information gathering area.  Where possible and appropriate, share information with the other party to maximise the benefit to the litigation, to support an open and transparent relationship between the parties;
• Consider who attends the meeting carefully with a view to reducing costs, albeit providing solicitors with the same benefits;
• Also consider if you need to attend in person or if virtual attendance will be as beneficial;
• If you're facing pressure from other parties around attendance, consider whether it's agreeable to attend every other MDT, for example, as fewer meeting attendances reduce costs;
• Assist in aligning litigation with the MDT recommendations/outcomes, for example, organising the necessary conferences, approaching experts or taking steps to onboard new members of the treating team where applicable;
• Offer attendance to defendants where appropriate, if unilaterally instructed. If this is declined, offer to share the minutes of the meeting, allowing the defendant to ask questions or request further discussions with the claimant's legal team if clarification or elaboration is helpful;
• Assist in oversight of the progression of SMART goals for the claimant, which provide a picture of what the claimant is benefitting from and subsequently highlights any areas that require further assistance/work;
• Work with the therapists to ensure that discussions taken place within the MDT are actioned. Having follow up professionals’ meetings where sensitive topics need to be discussed, can allow for a direct discussion between the therapists and the legal team, without the presence of the claimant;
• Consider open communication with the defendant, where appropriate, to ensure that all parties benefit from the insights gained. If any next steps need to be decided, it may be helpful to try to agree on them together;
• Ensure that requests for interim funds are identified in a timely manner and that discussions with defendant solicitors take place in respect of any further requested funds. Make sure that funds are spent in the areas identified within the MDT, which is beneficial to the claimant's needs/rehabilitation process.

Find out more on the judgement.

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