Q&As

Are there any pitfalls to be wary of in respect of a claimant’s private healthcare funding treatment and wishing to put forward their own costs. Does a claimant have to accept a defendant’s offer to provide rehabilitation or are there other risks?

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Produced in partnership with Andrew Wilson
Published on LexisPSL on 06/09/2019

The following PI & Clinical Negligence Q&A Produced in partnership with Andrew Wilson provides comprehensive and up to date legal information covering:

  • Are there any pitfalls to be wary of in respect of a claimant’s private healthcare funding treatment and wishing to put forward their own costs. Does a claimant have to accept a defendant’s offer to provide rehabilitation or are there other risks?

It is quite common for claimants, particularly those who are employees, to have arranged private cover for healthcare and to seek to use that cover for the provision of certain treatments or therapies following an accident. This may be in respect of the costs of physiotherapy or surgery and, less commonly, for cognitive behavioral therapy or other psychological therapies. Pursuant to section 2(4) of the Law Reform (Personal Injuries) Act 1948, when determining the reasonableness of any medical expenses incurred, the possibility of avoiding those expenses or part of them by taking advantage of treatment available from the National Health Service is to be disregarded. Nonetheless, this does not give the claimant absolute freedom when incurring charges for such expenses.

The major potential pitfall for the claimant in such circumstances is that the defendant will seek to argue that there has been a failure on the part of the claimant to mitigate their loss or that, for some other reason, a proportion of the costs should not be recoverable from the defendant. The most common basis for such argument will be that not all of the claimant’s injury, and therefore loss, is attributable. The claimant’s representative must give careful consideration to any available medical evidence at the stage of determining whether the period of attributable pain and suffering is potentially shorter than the full period

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