In this article, we consider the circumstances in which a client who has suffered a catastrophic injury* should apply to have his or her case expedited.
What is a catastrophic injury?* There are many definitions as to what constitutes a catastrophic injury. Historically, legally the definition was that any injury that causes permanent damage and prevented an individual from gainful employment was deemed to be a catastrophic injury. However, for example, if an individual loses an eye, which of course is catastrophic to the individual, although that injury may be permanent, that individual may be able to continue in employment or retrain in another area of employment. In the circumstances, it would not classically come within the definition of a catastrophic injury. If we were asked to define a catastrophic injury here, we would say that it would be a life changing injury so severe that it may result in permanent disability, causing long-term medical problems or a shortened life expectancy. Such injuries often involve the loss of use of a bodily system or function. These injuries require a multi-disciplinary input from a medical team, physiotherapy team, an occupational therapy team and/or a speech and language team in order to maximise a person’s rehabilitative treatment. The injuries will have an impact on the person’s activities of daily living whereby they will require care and the supervision of others and may well be unable to live independently and are unlikely to be economically productive.
Catastrophic injuries affect the life of not only the victim, but affect his or her family. The emotional and financial impact of such injuries is as devastating as the physical impact. Because of this, victims and their families have to seek justice in order to recover financial compensation for the necessary resources to be made available to them in order to maximise their future quality of life, including the quality of the medical care and other ancillary supports that they will require.
Some of the most common catastrophic injuries include serious birth injuries, head injuries, accidental amputation of a limb, multiple bone fractures, back injuries, severe burns, organ damage, spinal cord and neurological disorders which can result in paralysis.
If a catastrophic injury was caused by the negligent or intentional act or inaction by another or by a dangerous or defective product, a personal injury claim by the victim will seek to compensate the victim for the pain and suffering but also for the direct financial consequences that flowed as a result of that act or omission. We claim for damages for care, physiotherapy, occupational therapy, speech and language therapy, loss of employment, housing and accommodation needs into the future. With the assistance of medical experts, we obtain reports in relation to the impact that an injury has on a person’s life expectancy so that the Court can quantify the amount of damages that should be awarded in each case.
We have over 30 years of experience in bringing catastrophic injury claims and have been involved in precedent making cases. We are known within our field as being solicitors who have attained the highest awards for people. Indeed, the Medical Negligence Department obtained the highest award ever as a result of a birth injury whereby a little girl sustained permanent brain damage which gave rise to a condition of cerebral palsy and she was awarded €11 million in compensation.
Not every catastrophic injury claim will be expedited through the Court (although there is an argument that they should be expedited on the basis that the sooner a Plaintiff gets their award, the sooner that they can get the proper input in terms of the various therapies and care). The sooner rehabilitation is started, the better the outcome in that you maximise the person’s potential before contractures (permanent shortening of a muscle or joint) or the like develop. In children who have birth injury claims, there is a very narrow window of opportunity in order to maximise the child’s potential. If that window of opportunity is lost, it can result in long-term problems. For example, a child may be rehabilitated to such a degree as to enable them to walk as opposed to being permanently confined to a wheelchair. Losing the opportunity to undergo rehabilitative therapies and care can cause further complications which can have a knock-on effect on life expectancy and, thus, affect the individual and also their family’s quality of life.
As a practitioner, one has to balance when to get compensation in order to maximise the person’s potential, but at the same time be careful not to bring on the action too quickly as one needs to ensure that the full extent of the injury has evolved. Recently, we concluded a case for a six year old little boy who sustained brain injury during the course of his birth. Although we were instructed within six weeks of his birth, we had to wait and see whether or not the child reached his developmental milestones before we could determine the extent of his intellectual and physical disabilities. Of note, although he appeared to have been intellectually intact, it was not until he started school at the age of four that his teachers began to notice “behavioural problems”. When that was investigated, it became apparent that he not only suffered from physical but also intellectual problems which were going to have a huge impact on him. He had no sense of danger and would never be able to be taught strategies to deal with dangerous situations. In the circumstances, he was going to require 24 hour care and supervision. In addition, because at the age of six, he was bigger than his peers in terms of his growth, it was anticipated that he was going to be very tall. In the circumstances, we were then able to include a claim for two carers on a 24 hour basis.
Thus, in birth injury claims, in particular, you have to allow a sufficient passage of time for the full extent of the injuries to become apparent before you bring the case on for trial as your client may be under-compensated.
In our experience, the catastrophic injury cases that usually require to be expedited are claims where the full extent of the injuries is apparent. As a result of the injuries sustained, they have life limiting conditions that require their cases to be expedited so that the compensation that they receive can be put towards care so that it will ease the remainder of their lives.
During the last couple of years we have expedited a number of a catastrophic injury cases for clients whereby the full extent of the injuries was apparent and their injuries resulted in life limiting conditions. The idea behind expediting a claim is so that a client can get their damages sooner rather than later. For example, we expedited a case for a six year old little girl who was born with Down Syndrome but who had two other conditions which were negligently treated. As a consequence, she went on to develop an irreversible life limiting lung condition called Pulmonary Hypertension. This little girl was effectively imprisoned in her home (as were her parents and siblings) in that she required 24 hour oxygen and was hooked up to a heavy duty oxygen tank. The home that she was living in was totally unsuitable. Accordingly, we expedited her claim through the Court in order to get her compensation so that we could improve the quality of her remaining days whereby her family were going to be in a position to be able to acquire more suitable accommodation which would improve her and her family’s quality of life.
Recently we brought a case for a man who had a malignant melanoma which, as a result of medical negligence, was not diagnosed. By the time he obtained the correct diagnosis, the cancer had spread to other organs in his body. He therefore had a very limited life span but he was anxious to ensure that his family’s financial position was going to be secure post his death.
We also brought a claim for an elderly lady who was knocked down in a road traffic accident and who sustained injuries. The injuries, coupled with the lady’s age, meant that she required 24 hour care/supervision and her family were trying to provide that care in the interim. Accordingly, her case required to be expedited as they were finding it increasingly difficult in trying to meet their mother’s needs.
Lastly, we brought a case for a young woman who sustained catastrophic injuries. The young woman was imprisoned in a hospital ward, attached to a ventilator and with the prospect of her remaining in the hospital for the rest of her days. We sought and obtained an expedited trial. With the compensation, the woman bought her own home and moved into it with the assistance of carers that she hired to look after her. She freed herself from the hospital which had become like a prison for her.
In our experience, the Court is more than helpful in assisting catastrophic injury claimants who need to have their cases expedited. The Court generally does its utmost to facilitate an early trial for a catastrophically injured client. Unfortunately however, in our experience, some Defendants take a rather obstructive view to any application to expedite a trial and, indeed, we are sorry to say that we have had experiences in the past where such applications have been aggressively opposed. Indeed, in the case for the six year old girl with irreversible Pulmonary Hypertension, we had the unfortunate experience whereby the Defendant sought to defeat our application for an expedited trial. Fortunately, the Court actively case managed the case and an expedited trial date was fixed.
Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or [email protected] if you would like more information.
* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.