Case managers: Servants of too many masters?

underwood andrew author

Andrew Underwood looks at the role played by clinical case managers in the claims process for seriously injured patients and suggests how the system could be improved to benefit claimants.

For all the rhetoric around rehabilitation in the field of catastrophic injury claims, there remains an elephant in the room —the interaction of the clinical case manager with the process of damages valuation and evidence construction.

So what is the role of a clinical case manager in the claims process for a seriously injured claimant? This might seem an obvious question with an equally obvious answer — namely, to manage the care and rehabilitation packages, while the claims process is resolved in a parallel universe.

In Wright v Sullivan (2005), the Court of Appeal decided that case managers are witnesses of fact, not experts, and that they operate outside the litigation process as an advocate for the claimant. So that's straightforward then? Perhaps not - regime construction, like it or not, will have a direct evidential impact on the valuation by the court, if the claim gets that far.

If an hourly rate is agreed and paid, it is probable that a court will follow this lead and award the same rate going forward - whether or not that rate in fact continues after settlement. The same goes for the number of hours delivered and daily structure established. Thus case managers may have a direct influence on damages.

So what is the real relationship between the parties negotiating the claim and the case manager? In theory, the case manager is selected by both parties. But in reality, it is the claimant solicitor that has the final say on who is used in any given case.

Impeding communication
The defendant can ask questions of the case manager, but the Court of Appeal has said that these should be sent via the claimant's lawyer "for good order". This can impede communication significantly.

While case managers' records should be disclosed 'promptly', defendants routinely see delays of around three months or more. Furthermore, when the records do arrive, they have often been heavily vetted by the claimant solicitor, poorly collated, badly prepared or, in some cases, all three. Meanwhile, the case manager has unfettered access to the claimant solicitor's expert evidence — both in writing and in conference with counsel.

If a defendant sends through material that might influence the regime and rehabilitation programmes, it has no way of knowing if and when the case manager will see it. Case managers are supposed to keep records of all input, but there is no consistent model under which these records are kept for the myriad of providers in the market.

This puts the defendant in a very unusual position — unlike any other commercial arrangement, the party funding the service effectively has no say whatsoever over how and when the money is spent. Claimant representatives will say this ignores the fact that the rehab costs come from the damages awarded - the claimant's own money. In the vast majority of cases, however, courts may well award moneys spent pre-settlement as 'water under the bridge', rather than deduct it from the total.

When the pre-settlement rehabilitation spend can influence or even determine what money is awarded for future care, it is surely unjust that a defendant has so little influence over the decisions that are made. This hardly puts the parties on a level playing field, supposedly an overriding objective of the process.

So what should the case manager's role be? First, they ought to be solely concerned with establishing and advising the injured claimant's reasonable care and rehabilitation needs.

Also, they should operate outside of the claim process. Advice and input from the case manager — along with case reports and progress updates - should be seen by the claimant and defendant teams simultaneously.

Clinical input from all sources should be taken into account. If a dispute arises between the clinicians, the case manager should be entitled to ask the court for guidance on what to do — they should not have to make this judgement themselves. As well as this, if lawyers on either side request a change in a case manager's recommendation, they should be required to provide details to the court and the opposing party at the earliest possible juncture.

A trial of a system known as 'hot tubbing' is currently underway in Manchester —only in non-personal injury cases for now — whereby experts have the chance to question each other directly and a judge will take the decision on how to proceed on the given point in dispute. One can see how this mechanism might be adapted to deal with significant clinical disputes over care and case management.

In essence, case managers should operate in an entirely open and transparent environment completely outside the litigation process. This may be wishful thinking but, with spiralling care costs, the role of the clinical case manager with preferential access for one side requires reform.

Is this achievable, or merely hot air? One barrier is that claimant lawyers currently have no direct financial incentive for reform. The Jackson review could change this as, if the recommendations are introduced, it would mean that, for the first time in many years, the claimant will have a direct financial stake in what legal costs are incurred on their case.

Working in partnership
The claimant's representative will be entitled to ask when and why costs are being incurred in actions and — if they are escalating because defendants are forced to press for litigation to secure control and proportionality — they will be entitled to ask why this is taking place.

There are already plenty of examples of claimants and defendants working in partnership. For example, it happens in those cases where there are agreed discounts for contributory negligence, where the claimant shoulders some of the blame. In these cases the two sides work together — with direct and equal access to the case manager — to construct and fund a regime that will remain long term and meet the injured person's needs, giving certainty to the claimant and their family.

But the environment for the majority of cases will not change until the market or the courts address the status of clinical case managers. They must be a servant to one person and one only — the claimant.

Both the claimant lawyer and defendant compensator must sit it out on the sidelines but with equal access rights. Only then will the claimant truly be placed at the centre of the process.

Andrew Underwood is head of complex injury claims at Keoghs

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