Are commercial demands the
barrier to progressing transparency
at the litigation/case
management interface?
Peter Walmsley
Case Management & Litigation
• Case Management was introduced to the UK in the late 90’s it
is now in that awkward teenage phase.
• The rehabilitation industry is still not adequately regulated.
• A good case manager’s intention is always to put the
person’s life back to how it was before the accident:
• However case mangers remain in the firing line of the noninstructing (and instructing party) for their actions.
• Suspicion that not all parties goals are in alignment.
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Loughlin v Singh
Driving a wedge between the parties and treating Case Managers?
• Issues in Case management came to a head in Loughlin v Singh [2013] EWHC
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Facts: Claimant was a 23 year old male at time of trial and a recognised difficult
case. The Defendants argued that care and case management had been below the
expected standard, and quoted extensively from the case manager’s records, to
demonstrate that while the case manager accurately identified a particular problem
(lack of adequate sleep hygiene) in December 2008, no sleep programme was
actually drawn up until May 2010, and even that appeared suboptimal, to the extent
that the Judge concluded that the “ …sleep routine remained unaddressed
throughout 2010 and 2011 …”
‘…the standard of the care and case management services did, in an important
respect, fall significantly below the standard that could reasonably have been
expected …” As a result, the Judge reduced by 20% the charges actually
claimed for care and case management.
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Loughlin v Singh
Driving a wedge between the parties and treating Case Managers?
•
It was highlighted that support workers were employed for non-essential tasks. Parker J
stated this was ‘Fostering dependence rather than independence’.
•
The decision suggests that there would have been need for less support for the claimant had
the required sleep program been entered sooner.
•
The judgement follows that if a Defendant Insurer can accurately identify the extra support
work and case management that has been generated by poor performance of a third party
this will result in a reduction of the Claimants damages. There is now a motivation for a
Defendant to forensically investigate the Case manager and highlight increased costs
generated by inaction or unnecessary actions.
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•
In a successful Louglin argument it will be the claimant who suffers the
shortfall.
• Will the Claimant then purse the case managers for the difference?
• Should Case Managers now have a reasonable exclusion clause in
its terms of engagement limiting liability?
•
Easy to now see situation where there is a potential for conflict between
both parties and the Case Managers.
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Loughlin v Singh
Driving a wedge between the parties and treating Case Managers?
• Louglin decision has received some criticism. Did the actions of the Case
Manager equate to the same position of a claimant who has failed to
mitigate their loss? Is it a break in the chain of causation?
• In Ali v Caton [2013] EWHC 1730 a similar argument was rejected by
Stuart-Smith J:
•
‘The position of a significantly brain –damaged claimant who acts on the basis of
apparently reasonable advice is strong, though not always impregnable, when
seeking to recover the costs of doing so from a tortfeasor’.
• In reality neither side wants to see a adversarial relationship with the
case manager develop and all parties have to work together to ensure a
win:win scenario.
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Case Management & Litigation
• ‘Case Management is a collaborative process which:
assesses, plans, implements, co-ordinates, monitors and
evaluates the options and services required to meet an
individual’s health, social care, educational and employment
needs, using communication and available resources to
promote quality cost effective outcomes’ CMSUK
• If these requirements were being consistently met would
Parker J have given the reduction (and warning) in Loughlin?
• Should the role of case manager now be more clearly defined
and an improved way of collaborative working between all
parties be implemented.
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Case Management & Litigation
• Since the development of Case Management the number of those practising as
case managers have increased dramatically. As a relatively new industry many of
those employed have a good understanding of the therapeutic relationship, they
may not be as familiar with the personal injury process and may in some cases lack
the commercial awareness that is required for the industry (not in all cases!)
• Whilst on the face of it Louglin is a useful stick for the Defendant insurer to have in
their armoury to reduce costs, a more effective tool would be the carrot to ensure
that case managers deal with the cases appropriately and expeditiously.
• As demand for case management is increasing, now is
the time for the industry to revisit its definition of the
case managers role and provide adequate training and
best practice in order to prevent more cases like
Loughlin v Singh in the future. Defendant insurers
should position themselves front and centre of this. This
should achieve the win:win of a better result for the
injured claimant and reduced cycle times of claims.
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Pete’s Final Thought…
The litigation process isn’t always easy, but can you
imagine a world without lawyers?
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