Professional negligence in serious injury claims: When settlements fall short

Blog written by Abigail Flanagan, Partner and Head of Professional Negligence and Laura Zverev, Associate in our Professional Negligence department.

It is not always immediately apparent, following the settlement of a serious injury claim, that a solicitor or other adviser involved may have been professionally negligent. In some cases, professional negligence in a serious injury claim may only become apparent years later, when a settlement that once appeared sufficient no longer adequately meets the needs of the claimant.  For example, where the settlement sum recovered in a personal injury claim fails to cover a claimant’s reasonable ongoing care needs.

By the time concern crystallises, the original advice is often historical, the professionals involved may have moved on, and the consequences may be having a profound impact on the claimant’s day to day life.

In one recent case, we were instructed just short of 20 years after settlement. The original claim and settlement related to injuries that a minor had received following a serious car accident, where she had suffered catastrophic injuries. Two decades after settlement, a care worker for the claimant identified that the care budget in place for the claimant had been entirely exhausted. Our investigation revealed that the settlement funds had not been properly safeguarded or structured to protect the claimant’s long-term interests. We were able to pursue a negligence claim against the negligent solicitor for losses the claimant had suffered as a result of settlement monies not being properly secured and invested. The negligent solicitors settled the claim on favourable terms for the claimant which means she now has funds available to provide the care she needs for her future.

This delayed discovery of professional negligence (particularly in serious injury matters) can result in cases being wrongly overlooked, misunderstood or assumed to be irreversible.

Why problems rarely appear at the outset

Serious injury compensation is designed to provide lifelong security. In addition to compensating the injury itself, the settlement sum should include payment to compensate for ongoing losses the claimant will continue to suffer, such as care costs, loss of earnings, rehabilitation fees, new accommodation, costs of adaptations to homes, therapies and support. These losses are likely to span decades, not just years.

At the point of settlement, however, many of those future financial burdens are not properly investigated and/or included in the claim.

The question of whether a professional has been negligent will likely depend upon whether their original advice reasonably and properly considered the likely gravity and longevity of the injuries.

When under settlement becomes visible

In professional negligence claims arising out of claims involving serious injury, the issue is often that inadequate compensation was recovered to meet the claimant’s reasonably foreseeable ongoing needs.

Professional negligence can often arise as a result of:

• A solicitor’s failure to seek appropriate expert evidence on the likely future needs of the claimant and failure to properly appreciate the heads of loss that should be claimed in such claims (for example, long-term care needs).
• Poor advice from an accountant or independent financial adviser in relation to investment of settlement funds.
• Where a claimant lacks capacity to pursue litigation, a failure to appoint a suitable litigation friend and/or seek court approval of any settlement.

Common warning signs include:

• Care packages that need to be scaled back earlier than expected.
• Increasing reliance on state provision where private provision was anticipated.
• Insufficient provision for accommodation, adaptations or future moves.
• A lack of contingency for deterioration or unforeseen complications.
• Inadequate provision for future loss of earnings and pension entitlement due to a reduced, or complete loss, of an ability to work.

A shared problem, seen from different angles

Professional negligence lawyers who consider claims for the under-settlement of serious injury matters will consider:

• What was reasonably expected of a professional at the time the underlying claim was settled.
• The value of serious injury claims at the relevant time.
• Whether the claimant had capacity issues.
• Whether the professional should have considered long-term financial planning issues on behalf of the claimant.

Claims of this nature require a detailed understanding of how serious injury claims should have been prepared, valued and settled at the time. Our professional negligence team works closely with colleagues in serious injury litigation to analyse historic files, reconstruct what should have been claimed, and quantify the long-term financial impact of any failings.

When to seek advice

If there are concerns as to previous decision(s) made in a serious injury claim, early advice is essential.

It is sensible to seek guidance where:

• Compensation no longer supports the level of care originally envisaged.
• Funds have been exhausted or are at risk of being exhausted prematurely.
• Historic decisions are difficult to reconcile with current needs.
• A settlement of a previous claim on behalf of the injured party was not formally approved by the court at the time, where necessary.

Taking advice does not commit anyone to bringing a claim. It allows the position to be reviewed by a specialist in professional negligence matters.

Our professional negligence team will ensure that clear advice on whether a previous professional has been negligent; provide any potential claimant with an understanding of the options available as well as pragmatic advice on strategy.

Looking forward, not backwards

Professional negligence claims in this context are about restoring stability where earlier advice or decisions have undermined it.

For individuals living with serious injuries, the focus must always remain on the future: ensuring that care, dignity and security are properly supported for the long term.

Where professional standards have fallen short, the law provides a route to put matters right.

Pursuing a professional negligence claim can feel daunting, particularly where it involves bringing a claim against a former solicitor or adviser. In practice, many of these cases are funded through conditional fee agreements, meaning there is no upfront cost, and fees are only payable if the claim succeeds.

At the outset, we provide clear advice on funding options, risks and likely timescales so that claimants, or those acting on their behalf, can make informed decisions.