Q&A with Richard Money-Kyrle: Compensation for NHS negligence after moving abroad

We are often amazed by the resilience of families who battle through the immense hardship which follows a devastating injury to their child.

Whilst the negligent injury and its financial consequences may leave them with no alternative but to claim compensation, other aspects of life, such as work, must go on. When work or other family commitments involve moving abroad, an already complex claim becomes even more complicated. In these circumstances it is essential that the child’s claim is handled by a solicitor with specialist expertise in international claims for NHS-caused catastrophic injury, if the client is to receive their full entitlement to compensation.

Boyes Turner medical negligence partner, Richard Money-Kyrle, has successfully recovered top level compensation awards for clients who suffered catastrophic injury from negligent NHS treatment in England or Wales but were resident or moved abroad after the injury. We asked him to share his experience and insights into the unique challenges presented by these claims and the pitfalls that can cause problems for those who are inexperienced in handling these high value but super-specialist claims.

He will be answering the below questions around how to win a compensation case for NHS negligence after moving abroad:

If a child was injured by medical negligence here but now lives abroad – where do you claim?

If our client has been injured by negligence in England or Wales but now lives abroad, the law that applies to both liability and quantum (the value of the claim) is that of England and Wales. However, to value the claim properly, the client’s lawyers must understand the local law and practice and the local economy of the country or US state where the client lives.

In every case both parties to the claim should agree that the purpose of the compensation is to put the injured person back into the situation that they would have been, (in so far as money can do so reasonably) if the negligent injury had not occurred.

There is no standard protocol setting out how the valuation of international claims should be approached. Different approaches to valuation and evidence can result in the court making higher or lower awards. For that reason, it is essential that the injured client’s lawyer understands how these complex claims work and how to approach the claim in a way that secures the best outcome for the client.

Do you instruct experts from England and Wales or experts who are local to where the client lives?

Again, there may be disagreement about what evidence the court requires to make the compensation award and the role of the expert witnesses. The client’s needs should be assessed on the basis of UK based expert evidence. The recommended provision (the amount of care/equipment etc) to meet those needs should at least meet UK standards. The reports should include all aspects of provision of need but will not include detailed costs, as the cost will depend on what each item, such as care, costs locally to the client. The cost of meeting the client’s need should be assessed on the basis of local experts.

In some countries it is usual for a single expert to collate the costs of many areas of need (such as physiotherapy, occupational therapy, care etc). The English courts may accept this approach to reduce the number of experts needed to provide evidence of the cost of meeting the client’s needs.

The client’s solicitor must ensure that the local (foreign) experts fully understand and comply with their obligations to the English court. They must also understand the way the court here examines and tests expert evidence and the importance of their obligations to the court. The role of the local experts is to cost the recommendations provided by UK experts not to substitute their judgment on the level of the client’s need.

Does the client need to come back to the UK for medical experts’ examinations?

UK based experts travel to see the client in their own home. Where necessary specific investigations can be undertaken at hospitals where the client lives.

Disagreement between the parties’ lawyers sometimes arises over which country’s statistics should be used to predict the client’s life expectation for the purposes of the claim. The defendant may try to rely on the foreign country’s lower life expectancy statistics for severely disabled people. It is essential that the client’s lawyers can meet these arguments, usually on the basis that the client will receive better quality of care than the local severely disabled population because of the compensation award.

Life expectation evidence is important, as it affects the multiplier which is used to calculate the cost of some of the largest elements of the client’s compensation, such as lifelong care and loss of earnings.

Local medical practise, such as the use of medication or surgery (for example the formation of a gastrostomy), may be different and this can also affect the predictions for the client’s likely life expectancy and level of need. The court may need to decide from the medical and factual evidence what interventions may occur in future and their impact on the injured client.

Who decides on how much care the injured client should receive?

Provision for lifelong care is often the most important and the largest element of the injured client’s claim. The injured client’s legal team should ensure that the court accepts that the valuation of care should involve assessment of the injured claimant’s needs by UK based experts. Once those needs are identified according to UK standards, the cost of meeting those identified needs should be evidenced by local experts. This ensures that the client receives their full provision for the amount of care that they need, and that they have enough money to pay for it at local rates.

Disagreements sometimes arise over the number of carers needed by the injured client to provide for safe transfers and sufficient night-time care.

UK safety standards are governed by the Manual Handling Operations Regulations. These regulations set out a risk-based assessment designed to avoid injury for both the disabled person and their carers, while at the same time maintaining the disabled person’s dignity.

Local practice may not be governed by any rules and so the court has to decide whether the injured client is entitled to the same standard of care that they would receive in the UK or must accept the care that is provided locally. The court usually does this by hearing evidence from UK based experts on the level of need (in this example, the number of carers and equipment required for transfers). The UK experts are expected to base their opinions on the care reasonably required by the injured claimant if they were living in the UK.

If there is a difference of opinion between the UK experts as to the level of need, the court makes its decision without reference to the local experts. Once the court has made findings of fact about the client’s needs, the court then hears evidence from local experts on the cost of providing the care and equipment that was recommended by the UK experts.

It is important that the injured client’s legal team understand local regulations and practice, as there may be aspects of care provision, for example the administration of some medicines, which require qualifications (and increased costs) under local regulations that are not needed in the UK. Where there is a difference in standards, the higher standard should be applied. If the local standard is not met the injured client’s care needs cannot be met. If the UK standard is not met or exceeded, the injured client is put at a risk which is unacceptable to UK law. In either case, the client will not receive full compensation.

Is the cost of therapies and provision of equipment assessed by UK or local experts?

As with care and assistance, the court should allow the parties to instruct UK experts to assess need and local experts to provide the cost of meeting the need as assessed by the UK experts. UK-based and local experts may disagree about the amount of therapy and the level of expertise of the therapist that they recommend. Unless the UK recommendations would breach local regulations the court will assess frequency and level of expertise on the basis of UK expert evidence while relying on local experts to evidence the cost of provision.

As with care and therapies, the UK expert will recommend equipment and the local expert cost. It is essential to check whether equipment recommended by the UK expert is available locally and if not, whether locally available alternatives are suitable. If suitable equipment is not available locally, the claim should include the additional costs of assessing the injured claimant for equipment, and importing and maintaining that equipment.

How is adapted foreign accommodation provided for in an international claim?

English law is used to calculate the capital cost of appropriate accommodation and to the standards to which the client’s local accommodation should be adapted. In the same way that provision is made for meeting most of the injured client’s needs, if UK standards are lower than local standards, local standards will apply to ensure that the client’s compensation meets their actual needs.

How do you ensure that a severely injured client meets their need for special education abroad?

Special educational provision must be sought for the permanently disabled child and this requires specialist investigation. A UK-based expert should assess the injured person’s capabilities and the standard of local provision, so that the injured client’s need for individual support and a suitable placement can be identified for the client.

The client’s solicitor must then instruct local education lawyers and educational psychologists to provide evidence of local laws, practice, and cost and establish the extent to which the injured person’s needs (as identified by the UK-based expert) can be met by any local, state-funded provision. The experts will need to confirm whether the client will entitled to free education once they have their compensation. They must also say how much it would cost the client to enforce their right to receive free education, if it is refused. The expert must also consider the cost and feasibility of topping up the client’s state-funded education if it proves inadequate, and the costs of private, special education if necessary.

How do you ensure that an injured child will receive proper healthcare for their needs abroad?

We ask UK-based experts to assess the injured person’s likely healthcare needs as a consequence of their injury. As with other aspects of the client’s provision, once their needs are identified by UK-based experts, we then instruct local experts to advise us how and at what cost those need can be met.

Assessment of lifelong healthcare needs can be problematic and a full assessment of all likely healthcare needs is difficult to make with any certainty. UK experts may be used to identifying specific healthcare needs which arise as a consequence of an injury, but they will not necessarily be used to estimating the full range of all possible healthcare needs, whether arising from an injury or in any event.

For injured claimants living in the UK, this is less of a problem, as injured claimants are entitled to NHS provision for the majority of their healthcare needs. For injured claimants living abroad, local free healthcare provision may not be provided. Healthcare may be funded through a range of insurance schemes. The client’s eligibility for health insurance may depend on their circumstances, such as whether a parent has family health insurance through work. If they can get insurance, their cover may be limited or they may have to pay a large excess. Some seriously injured clients living abroad find that because of their injury, their health insurance costs as much as paying privately for their healthcare.

Expert evidence will be needed to advise what the cost of the client’s healthcare would have been without the injury and what, if any additional (and increasing) costs will arise as a result of their disability.

How do you value a UK-injured client’s loss of earnings when they are now living abroad?

The court uses English law to decide on what the client’s likely career path and earnings would have been if they hadn’t had the injury. Evidence of family achievements, careers and aspirations is used to assist the court. The client’s solicitor will need to obtain evidence of the local (foreign) employment market, the client’s likely career progression, earnings and taxation.

What financial and investment difficulties arise in an international claim?

If compensation is to be invested locally the parties must consider whether the UK discount rate is appropriate for the circumstances of the injured client. They must also consider which is the best currency for the client’s PPO payments and how best to make it ‘inflation-proof’ by linking it to appropriate indicators of rising costs. Evidence from actuaries and economists will be required with proven expertise to comment on local investment and indexation issues. It is essential that these experts also understand the UK approach to setting the discount rate.

Local lawyers must advise on whether the client will be taxed on their compensation. There are various ways in which the client could be taxed, such as if tax must be paid when money is transferred from the UK to the client’s new home country, or on compensation which relates to loss of earnings. PPOs (guaranteed lifelong, annual, index-linked ‘periodical payments’ often used to compensate care costs) are tax-free in the UK, but these may be taxed as income in other countries. A compensation award may also affect the injured claimant’s entitlement to any local benefits and support.

Evidence will also be required of local regulations and practical matters relating to the management of the injured ‘protected party’ client’s compensation award, as well as local costs of management. Costs of investment advice are not recoverable under UK law, but the costs of management of the award are, and these need to be fully understood, evidenced and claimed.