With our treatment-focused approach to claims, the recoverability of treatment costs is a constant consideration. This is particularly so with claims involving chronic pain conditions such as CRPS, where the proposed treatment may be relatively novel and/or there is little research on its long term efficacy.
Whilst insurance companies have slowly become more switched on to the nature and therefore the cost of such treatment, in the background there definitely remains a mindset that “treatment equals painkillers and physiotherapy”. Even established treatments can be expensive. Inpatient rehabilitation programmes cost between £8,000 and £15,000 and spinal cord stimulation leaves little change out of £30,000, so it is perhaps not surprising that insurance companies take some persuasion to part with the necessary funds.
Ultimately, if funds are not forthcoming, it becomes a matter for the Court, either at trial or by way of an application for an interim payment.
The basic principle behind civil damages is, as far as possible, to put the injured person back in the same position they would have been in if they had not been injured. Accordingly, a Claimant may advance a claim for the cost of any treatment that an appropriate expert believes is likely to help them.
However, that does not necessarily mean those costs will be recoverable and, in reality, a judge is often faced with the dilemma of the parties’ respective experts giving wholly opposing opinions on the need for, or efficacy of, a particular form of treatment.
The legal position is that a Claimant is entitled to damages to meet their ‘reasonable needs’. Clearly, the Defendant will wish to keep the level of damages to an absolute minimum. Therefore, in relation to treatment, they will inevitably raise arguments such as a lack of evidence on the long term efficacy of the treatment as a reason that the Court should find that it is not reasonable for the Claimant to recover the associated cost.
If a treatment is particularly novel, it may well be that the experts in the claim have relatively little knowledge of it. In such cases, experts should be encouraged to contact the researchers concerned to increase their knowledge and obtain further data that can assist not only the Court, but also the Claimant in deciding whether they really do wish to proceed with the proposed treatment.
Ultimately, however, just because a treatment is novel should not preclude its cost being recoverable per se. After all, treatments which are now relatively common were, perhaps not that long ago, themselves seen as novel.
A good example of a likely future battleground will be in claims involving CRPS, in respect of the recoverabiity of the cost of immunoglobulin therapy once the final results of the LIPS trial are published.