Reflection of a Medico Legal Dependency Claim Case(Full summary of reflection – 06.12.20): Nicky Bukowski

Background to the Dependency Claim Case:

Case Instructions

The case (acting for the Defendant) was allocated to me in 2019. At the time of allocation I was unfamiliar with Dependency Claims, however the instructions at this time did not cause any uncertainty with how I planned to proceed.

My instructions were to prepare a medico-legal report dealing with the aspects of care that Mrs X had required since the death of her daughter, Miss Y in 2015. 

I was asked to consider the following:

1.    The effects of the Claimants problems on activities of daily living i.e., ability to wash, dress, domestic tasks such as washing, cooking etc.

2.    Comments on the Claimant’s past, current and future care requirements, what care was provided by her daughter prior to the index accident.  The current level of care that is required and Future Care?

3.    The Claimant’s reasonably aids and adaptation needs?

4.    To what extent the claimant had care needs in any event (if any). 

5.    The Claimant’s ability to care for herself in the short, medium and long term.

6.    Any other relevant issues in relation to occupational and vocational therapy.

Overview of the case:

Social and Medical

Mrs X was 75 years of age when I visited her. She was living alone in a small bungalow where she had been living with her daughter prior to her daughter’s death (the mortgage was originally that of Miss Y). Her older brother had visited almost daily following the death of Miss Y however, on occasion Mrs X would meet friends giving him a day off. The brother was thought to be spending most of the day with Mrs X and providing a high level of care. 

 Following retirement Mrs X (former nurse) and Miss Y had moved to Cyprus together. Whilst Miss Y supported her mum whilst in Cyprus, it was not until they returned to the UK that an increase in care was started.

 Medical history of Mrs X:

·         Generalised Osteoarthritis

·         Degenerative changes of the spine which was reported to be severe (likely from heavy lifting during working life as a nurse)

·         Hypertension

·         Hypothyroidism

·         Chronic Kidney Disease (mild)

·         Fractured skull in 2007

Her medication was noted as:

 ·         Levothyroxine

·         Atorvastatin

·         Doxazosin

·         Ramipril

·         Adizem XL

At the time of my visit and following a review of the medical evidence I was surprised that Mrs X was not taking any pain relief given the reported high levels of back pain. It was the back pain and wider body pain that was reportedly reducing her function and mobility. It was further surprising when Mrs X rated pain as often being 8 / 10.

 There was no evidence that Mrs X had seen a specialist in relation to the pain or in fact seen her GP to discuss pain. No clear accounts were found from the GP regarding ADL difficulties.

 Mrs X was a heavy smoker and had been for many years. It was claimed she smoked 10 cigarettes per day. On the visit the ash tray was overflowing with cigarette ends and there were many empty packets in the bin. Over the course of my visit Mrs X smoked over 20 cigarettes. In addition, her brother was observed to chain smoke also.

ADL

Miss Y worked nights as a cleaner and for some time she had been working 7 nights per week. Mrs X was therefore alone in the bungalow from evening time until morning. She was able to get supper, get herself ready for bed and access the toilet overnight independently.

 When Miss Y got home from work, she walked their dogs and often got breakfast for her mum whilst getting herself some food. It was clearly reported by Mrs X that she was able to get her own breakfast and this was something she did at times. Mrs X reported preferring to be independent and she referred to her daughter as always “fussing” over her.

 Mrs X could wash and dress independently, albeit with some struggles with lower body dressing. Whilst her daughter slept during the morning, she would potter around the bungalow and could make herself a drink. Miss Y would get up around lunchtime to walk the dogs and make lunch for them both. Again, Mrs X reported she could make lunch if required and did so at times.

 Miss Y would return to sleep until early evening at which time she made the main meal. Access to the oven was a problem however she could use the microwave and hob.

 Miss Y did the shopping, attended to all other household needs (it was noted that it was her own home and therefore this would have been expected). She also collected her mum’s prescription.

 Mrs X had a powered bath lift. I observed her as fully safe and independent with the transfer. She told me that her daughter had preferred to be in the bungalow when she took a bath but since her daughter’s death Mrs X had usually bathed whilst alone in the property.

 Within the bungalow Mrs X was observed walking unaided. She was steady on her feet and walked at a good pace. At times she naturally reached for door frames but this was not to steady her balance. Outdoors, she used a mobility scooter and took her stick with her. Since the death of her daughter, she regularly gets herself ready, goes out on her scooter and meets her brother at the shops.

Opinions / Differences between Claimant and Defendant care experts

In summary:

There were huge discrepancies between care experts from the outset. It was identified in the first joint discussion that this was due to the difference of the professional backgrounds of the experts i.e., nurse / OT, how we had been instructed and how we assessed and approached the case.

The Claimant expert had allowed for several hours per day for the brother being in the property; even if he was not actually providing care.

The Defendants approach was to look at what she could do for herself and if the support from the brother was mutually beneficial. It was considered that if he was not in the property could Mrs X have met her care needs.

Despite the first joint discussion little change was made to expert opinions. Then in 2020 the case progressed with new medical evidence and a subsequent request to carry out a 2nd joint discussion.

During this discussion more time was allocated to the nature of a dependency claim and the Claimant expert having been given more detail about how these claims work. She also stated that since taking this case, she has been allocated more dependency cases and has found the approach different to standard medico legal cases. She indicated having had guidance from solicitors regarding such cases.

Amendments were made to expert recommendations following the medical evidence, by both experts. The Claimant expert reduced some costs and I increased some costs but significant differences between the expert’s opinion remained.

In light of the information from the joint discussion, questions were put to the solicitor by myself querying the approach I had been asked to follow. I asked questions around dependency claims and as the case was due to go to Court imminently, discussed how this could affect my witness evidence.

The solicitor maintained his initial thoughts and felt how the case had been approached was still appropriate. 

Reflection

Considering the above and with a Court date fast approaching I began reflecting in detail about the case and looked into Dependency Claims online.  I found little information and that there are a lot of grey areas within dependency claims.

With limited findings on this topic, lengthy discussions between Julie Jennings and myself began. In fact, both of us were not able to find a huge amount of information to guide me further.

Julie produced a document following her research whilst I prepared for Court. A large amount of time was spent thinking of how I would defend the approach taken should I be challenged on this.

The case settled the day before Court. Julie and I discussed / reflected how to go forwards with such cases should they occur and we agreed that from the outset, clear guidance from the solicitor on how they want us to proceed is essential, as well as emphasising with the solicitor the need to ensure it meets with the nature of a Dependency Claim.

On reflection, documenting clear and full details of our instructions from the solicitor specifically about dependency claims, should be applied going forwards with cases of this nature. This would assist with explaining why we as experts have taken the approach we have, should it be challenged further down the line.

Whilst we do record details of our instructions in all cases, perhaps at times we summarise them? and the need for documentation of full instructions should be considered for all cases we take on, not just dependency claims.

We should challenge the instructing solicitor further on their instructions if it is not felt they are in keeping with a dependency claim. Again, this should apply to all cases.

Thoughts for further reflection relating to Dependency Claims

Study Day discussion with Julie Jennings and Associates about the experiences of others in relation to Dependency Claims. Have others had similar cases? Have others felt they were not given clear instructions?

Possible training session, or for information to be provided by a solicitor / Barrister on Dependency Claims; What they are, examples of dependency cases and how we as experts fit in with such cases. Regarding the latter, more information on how it could impact on the approach used by Claimant and Defence care experts.

How this reflection has guided further work

Since this case I have not been allocated another dependency claim as yet.

Whilst I have asked questions previously on occasion with some case instructions, I have not always done so or felt confident enough to do so.

The fact that this case was almost in Court and I did not feel confident in the approach I had taken based upon my instructions has made me more than ever acknowledge that we are accountable for our assessment / report and we need to be confident in the approach we have taken.

With this in mind I have since approached the instructing solicitor in a couple of cases to obtain clearer information as regards my instructions. This in turn has helped me feel more confident with how I proceed with cases.

Nicky Bukowski.