Stewarts Law: securing funding for exoskeletons on behalf of those with spinal cord injury

Dale Messenger in Cape Town

Stewarts Law specialise in catastrophic personal injury work and as part of our series taking you through the process of claiming compensation, we wanted to share with you recent success in securing damages to fund exoskeletons for suitable clients.

We recently acted on behalf of a serviceman in the case of Dale Messenger v Ministry of Defence. Our client suffered serious spinal injuries in October 2009 during a live ammunition training exercise in the Falkland Islands. During the exercise, Dale was accidentally shot by another soldier with the bullet passing through his right hip and out of his left hip. As a result of the shooting, Dale was left paralysed and is wheelchair dependent.

Stewarts Law pursued a claim against the Ministry of Defence and liability was admitted in full, with the level of compensation agreed in September 2014. Dale Messenger recovered 100% damages including damages in excess of £550,000 to cover the cost of an Ekso exoskeleton. The costs for the exoskeleton covered the walking frame with replacements and its associated costs over the course of Dale’s lifetime. 

According to Ekso Bionics who manufactures the Ekso suits, this was the first known recovery of damages in England and Wales for this type of equipment.

When thinking of bionic exoskeleton suits, futuristic robotic uses often primarily spring to mind. The term ‘exoskeleton’ has its source in nature, referring to the outer skeleton that some animals have to support and protect them. 

Exoskeletons were primarily developed for military uses. They are used to provide protection, and give servicemen the ability to bear huge weights, in the field and in rescue operations to recover victims without significantly moving them.

BBC News has reported on the ‘rise of the exoskeletons’ which explores how the suits are becoming ever more sophisticated with technological advances. 

Crucially, exoskeletons are becoming commonplace in patient rehabilitation. This is one of the most exciting areas of development in the field of spinal injury and one that Stewarts Law takes a keen interest in. The devices are aimed at getting the spinally injured back on their feet and walking again. 

The Ekso exoskeleton allows Dale to pursue therapeutic walking. We have seen first-hand that this makes a huge difference to our clients. Whilst offering the various positive physical benefits that one might expect, walking in the Ekso resulted in significant pain relief for Dale.

Dale, who is also an Ambassador for Ekso Bionics, travels the world demonstrating the Ekso.

According to Ben Rogers, Partner at Stewarts Law who represented Dale, “This settlement reflects both the ability in principle to recover damages for the Ekso and of course the need to instruct a specialist lawyer to assist with such a claim.”

Dale Messenger demonstrates the Ekso for Ekso Bionics in Cape Town

The Ekso has made a big difference to Dale who says “During my case, many subjects were discussed and items of equipment reviewed. One such item was the Ekso and it proved to be more valuable than I could imagine. The benefit I get from the Ekso ranges from pain relief, improvements to my bladder/bowel function and more recently, an increase in my motor function and sensation. Stewarts Law worked continuously to ensure that I was kept up to date for the duration of my case and the acquisition of funds for the Ekso in my settlement just shows how dedicated they are. I cannot thank them enough.”

This is a field which is rapidly progressing and we expect to see more claims that secure people access to exoskeletons.

Read more about our work with SIA here. 

 

Ben Rogers, a Partner at Stewarts Law, represented Dale Messenger and advises on all aspects of catastrophic injury, with particular expertise in spinal cord, brain, complex orthopaedic and amputee injuries.

Stewarts Law: compensation claims in the case of clinical negligence

Following on from our article about the myth of a widespread compensation culture, we would like to build on this by focusing in particular on clinical negligence claims.

We provide an initial consultation and advice free of charge. This enables someone who is affected by a spinal cord injury to obtain legal advice without any obligation, helping them from the outset of a very difficult time.

An early review can often identify potential claims for clinical negligence, even where there may have been no initial concerns relating to any medical treatment provided. Our expertise in this field often helps us identify potential claims. These can include delay in diagnosis or treatment, sub-standard surgery, misdiagnosis or misprescription of drugs or a failure to obtain informed consent. 

All medical professional s carry indemnity insurance precisely for these reasons. Everyone makes mistakes, but mistakes in medical care can have catastrophic consequences.  Where there has been negligence in the provision of medical care and treatment, we can help identify and bring a claim that can provide valuable compensation. This can assist with care and accommodation needs, medical and other expenses and lost earnings. It can help to provide financial security and the opportunity to maximise quality of life.

Clinical negligence cases can be complex and demanding but our experience and expertise in these cases enables us to obtain exceptional results for clients. We understand that the demands of those with spinal injury are substantial and complex and therefore handle much smaller caseloads than the majority of clinical negligence lawyers. This ensures a proactive and client-focused approach.

We recently settled a clinical negligence claim for Louisa Tempest who fell heavily whilst getting into a taxi to travel to a club during an evening out in Birmingham. She was a 20 year old Geography student at university and was taken into hospital by ambulance. The hospital staff negligently failed to properly assess her and allowed her to fall from a trolley whilst in A&E. A few hours later, a junior doctor failed to properly assess her neurological condition. The junior doctor wrongly decided to discharge her whilst she could not walk properly.

Her friend had to help her into a taxi.  Her friends were unaware that Louisa was at high risk of permanent spinal cord injury. Back at her friend’s student house, Louisa was lifted onto a sofa to rest. When she awoke, she could not move or feel any of her limbs. This was because severe spinal cord injury had been caused by the dislocation of unstable vertebrae in her unprotected neck. Her friends knew nothing about this risk. Proper care in hospital would have prevented any injury.

Louisa did not realise that she might have a clinical negligence claim. Whilst undergoing rehabilitation in her local Spinal Injuries Unit, she asked Stewarts Law to prepare a Power of Attorney to allow her family members to deal with her affairs on her behalf.

Frank Pinch, Head of Clinical Negligence at Stewarts Law, advised her that she may have a claim against the Hospital Trust because of potential failures to protect her neck and take steps to avoid the tragedy which occurred.

The potential case was investigated and independent experts supported a claim. The lawyers for the Hospital NHS Trust resisted accepting responsibility on behalf of the Hospital Trust for a lengthy period. Louisa’s accident occurred in October 2010; the Trust conceded liability in January 2013.

From that point, detailed assessments of her long-term needs were carried out. Negotiations resulted in the case settling in September 2014, just over three weeks before the trial date. The precise terms of the settlement remain confidential but the amount is significant and will ensure that Louisa can pay for her ongoing care, accommodation, therapies, equipment and medical treatment for the rest of her life.

Louisa commented, “The staff at Stewarts Law have always been so professional but also caring. After a long struggle, it was a huge relief to know that I will have financial security for my future; that I will be able to have the care that I need, plus adapted accommodation and equipment. It means a great deal to me to be able to realise my freedom and independence and get on with my life with the help of the financial settlement that Stewarts Law has helped me to achieve.”

For more information on how our Personal Injury and Clinical Negligence teams work closely together in order to obtain compensation for patients and their families who have suffered catastrophic or fatal injuries following negligent medical treatment, read more here.

More information about our work with SIA can be found here.

Stewarts Law: overcoming the myth of a widespread compensation culture

In our first three blog posts, below, we have discussed how we established the facts to build a claim for our spinal cord injury clients and support their lifelong care needs. However, many cases do not reach this stage.

A lot has been written about the rise of the ‘compensation culture’ that is facilitated by ‘no win, no fee’ agreements, which give more people access to the legal system. It is important to realise that such agreements provide the seriously injured with greater opportunities to seek compensation for wrongful harm.

There is a distorted perception that anyone who has suffered a personal injury can seek compensatory damages, when in fact, there needs to be someone at fault. Insurance is already in place to address such occurrences, whether it is an accident in the home, on the road or at work.

A potentially bigger social problem is that valid claims are not brought in the first place. Legitimate claims that are not pursued result in a cost to society, because they then require state funding of care.

The statutory level of care will be less than the level agreed to, and funded, as a result of an insurance claim because experts are often enlisted to assess the short and long term needs of the individual. There are often drastic differences in the calculation of the level of care required. A shrinking state in light of the current economic landscape puts extra pressure on the hours of care available at statutory level and therefore should be a last recourse for victims of accidents.

There may be a number of reasons why people do not bring a claim. One of the more common reasons we have experienced as specialists in personal injury claims is the hesitance some feel about bringing a claim against another family member or their employer. Claims may raise difficult issues those who feel reluctance to claim against someone who they are loyal or close to. We see this often with family members and members of the armed forces.

However, insurance is in place precisely for circumstances where the fault of anyone, a close friend, family member or employer, has led to serious injury. It is critical to realise the social importance of insurance claims where there is a viable claim to prevent people having to fund their loved ones’ own care. The risk should also be considered in monetary terms, where any concerns over someone’s no claims bonus, worth a few hundred pounds, needs to be weighed against a likely seven figure pay-out that can sustain the lifelong care required.

The story of the young and ambitious Issy demonstrates the need to face up to the reality of why insurance is in place. She was awarded damages which enabled her to fulfil her ambitions of travelling and going to university.

Issy was left paralysed from the neck down following a car crash when she was nine in July 2005. A car driven by her mother, Jennie Sale, veered across the Horning Road in Hoveton near Ludham, Norfolk, into the path of an oncoming van. Although she was sitting in the back with her seatbelt on, she sustained severe damage to her spinal cord, resulting in complete tetraplegia. Issy Sale, 17 at the time of judgment, will be dependent on a ventilator for the rest of her life and uses a chin-controlled electric wheelchair.

Issy and her family accepted the necessity of claiming on the insurance of a family member. The settlement provided for a lump sum of £3.2 million plus annual periodic payments for aids, therapies, 24-hour care and loss of earnings. The award is equivalent to £14 million over her lifetime.

Paul Paxton said: "Although this is a very large award, the money needs to last Issy a lifetime. Her needs are great but so too are her ambitions."

The second reason why people may not bring a claim is that they fear adverse implications for a friend or family member. It is important to understand that the insurance claim does not adversely affect the person you are claiming against. The admission of fault in a claim does not involve a criminal sanction.

Finally, another reason that someone may not bring a claim is because they do not want to put someone through a cumbersome process. The process involved is quite straightforward once fault is admitted. The most that the person responsible might have to do in a claim against them is provide a witness statement, as less than 10% of claims result in any court action.  

Following serious injury, people are entitled to seek peace of mind to know that they did everything in their power to recover some level of financial support to help them in the future.

To understand if someone has a viable claim, contact one of our experienced solicitors. [http://www.stewartslaw.com/services/personal-injury/spinal-cord-injury.aspx] who can discuss the case and advise on whether it can be progressed.

More information on Paul Paxton, Partner at Stewarts Law who specialises in complex personal injury claims, and led Issy’s case, can be found here.

Read more about our work with SIA here.