How can the legal system adequately support amputees? A Q&A with partner Rachel Rees

On 25th February we were delighted to co-host the ‘Back to the Future’ Rehabilitation Conference alongside Exchange Chambers and Pace Rehabilitation to raise awareness of what can be achieved for those who have undergone amputation.

Rachel Rees, one of the partners here at PotterReesDolan Solicitors, spoke at the event, alongside numerous other experts, offering her unique insight into managing compensation claims in cases where the claimant has lost a limb.

We wanted to know more about the legal challenges facing amputees and what Rachel thinks needs to change in the industry to better support amputees, so we sat down for a Q&A...

Why did you decide to get involved in the conference?

In addition to raising awareness of what can be achieved by amputees, we also wanted to bring more transparency to the cost of prosthetics.

That’s because it typically becomes a massive conflict in a legal case, because they are very expensive and the defendants often don’t believe they should have to pay for them.

Whilst we feel we are right to reasonably argue that our clients should have compensation that allows them to buy the most current and evolving prosthetics to maximise their mobility and function, it does become a huge battleground in the claim.

We wanted to offer the manufacturers a chance to showcase their products and explain why they are so expensive, as well as help us understand whether the cost will become more manageable in the future. There was a really interesting debate at the conference between representatives of the manufacturers and the delegates, and the manufacturers explained satisfactorily why the costs are so high. But it was really useful to get that debate going - as normally it only happens between law firms and insurers.

Do amputees get the support they need from the legal system or the NHS?

The biggest battle we face from a legal perspective is the defendant arguing that the claimant should manage with much cheaper alternatives from the NHS.

That’s the challenge, and we have to explain to the court that this just isn’t good enough, compared to the other options that are out there. Our clients should be able to get as close as possible to the position they were in before their accident.

Carolyn Hirons, a physio from Pace Rehabilitation, said at the conference that the very best prosthetics are very poor compared to a real limb. That means that regardless of how sophisticated they are, the victim will never feel the same as they did before their accident. But it also means less advanced prosthetics can have a serious impact on an amputee’s quality of life.

You can see a huge change in a client’s comfort and function from the start of a case, with an ordinary prosthetic limb, to the end, when they are able to afford a more advanced prosthetic limb.

One of my clients had ordinary knee and ankle joints on his previous prosthetic leg, but now has one containing a microprocessor in the knee and ankle joints, and it’s made a huge difference to him, even if it’s just being able to walk comfortably and smoothly up three steps and a ramp and then down again.

He gets terrible back pain and he said at the start of the case that his priority is to improve his mobility as much as possible. When he is using the new ankle and knee joints the back pain is still there, but he’s able to walk and stand and be active for much longer, whereas previously he’d have to take off his prosthetic leg after a short amount of time. Small changes can make a big difference.

Another big difference for him is that with his new prosthetic leg, he can wear different shoes. Previously his foot was only set to work with the pair of shoes he was wearing when he was originally fitted for the leg. That meant if he wanted to wear a different pair of shoes, the setting wasn’t right, making it dangerous to walk on steps or on slopes. It also meant it restricted him, as a young person, to having to wear the same pair of shoes for months on end.

None of our clients have been offered these latest prosthetics when receiving treatment from the NHS - that’s only been possible since they’ve had access to substantial interim payments as a result of their compensation claims.

How do you help to prove your clients need more advanced prosthetics?

We gather the necessary evidence to show subjectively and - importantly - objectively, that the improvement to the client’s function is such that it must be ‘a reasonable need’ for them to have access to those latest prosthetics.

We have to gain evidence from a combination of sources, such as the client, their witnesses, and a range of experts, to demonstrate to the court that it’s reasonable for the defendant to provide for that need. We need to show that this isn’t just a marginal need of the client or a luxury - it’s sufficiently important to their quality of life and that it should be compensated for.

We describe a reasonable need as anything that can help you perform important functions such as being able to walk and get from A-B, stand up while doing your job, get to your job, socialise, look after and pick up your children, and so on.

How do you go about gaining that evidence?

Our experience is very important - we’ve specialised in catastrophic injury claims including amputation claims for more than 20 years. And we don’t just manage the cases - we’ve run cases successfully to trial. We’ve had first-hand experience of what you need to get over to a trial judge in order to establish reasonable need. The experience we’ve gathered working with lots of different clients with the best experts in the field means we’re extremely well placed to gather the optimal evidence to give our clients the best possible chance of recovering compensation to enable them to purchase the latest prosthetics.

It requires a lot of attention to detail, but at the same time standing back and considering what is the client’s reasonable need and what does the judge need to know.

We also make sure we educate ourselves about what’s out there. We’ve had to learn a great deal about prosthetics to make sure we’re getting the right specialist advice for our clients. We go the extra mile and don’t wait for our experts to guide us - we’ll make sure we’re aware so we can work closely with the experts and clients to make sure they are able to consider the most up-to-date pieces of equipment.

What needs to change in amputee claims?

There needs to be a more realistic approach from the defendants throughout the claim, rather than the client having to go through a really difficult process whereby the defendants refuse point-blank to cooperate and investigate the best prosthetics options.

I’d also like to see a more collaborative approach, so that both parties can at the earliest stage possible help to obtain the most appropriate prosthetics. It’s great to get a pot of money at the end of a five-year-long legal battle, for example, but in that time the client might have developed problems with their gait and serious pain that could have been avoided if they had access to the prosthetics much earlier.