MULTIPLE SCLEROSIS AND PERSONAL INJURY – APPROACH WITH CAUTION!

Our personal injury team deal with a wide variety of cases and resulting injuries, here Paul Maxwell and Nicola Clarkson talk about what to be mindful of when a case involves a pre-existing condition, such as multiple sclerosis.

I have recently settled a claim for damages arising out of a road traffic accident where my client had pre-existing multiple sclerosis. Despite the accident being a significant head on collision involving a Defendant who had lost control of his vehicle because of too much alcohol, my client’s immediate physical injuries were relatively slight in orthopaedic terms. However, they were still sufficiently serious (mainly because they removed her remaining independence) to require a prolonged stay in hospital.

Prior to the accident, my client was unable to walk without assistance and drove a modified motor vehicle. Her house was modified, but she was able to access all areas of it and had sufficient strength in her right leg and her arms to be able to pivot transfer and use a perching stool to carry out some tasks in the kitchen, such as the washing up. She was able to use rails in her bedroom and stand on her good leg to dress and undress. She was also able to access her upstairs bathroom and transfer herself into and out of the bath. Her evidence was that her multiple sclerosis had been stable for quite a few years. This was supported by a careful review of her medical records.

Following her discharge from hospital, my client was restricted to the ground floor of her property. Her remaining good leg no longer had enough strength to support her weight which left her unable to pull herself to her feet and stand to carry out tasks or to pivot transfer. Physiotherapy was provided to my client but without any increase in strength in the left leg.

My client felt that the accident had caused her pre-existing multiple sclerosis to advance. Clearly this is one of the most difficult scenarios in personal injury litigation, and it is quite common and difficult for a client to accept that a condition or increase of symptoms arising following an accident, has not actually been caused by the trauma in question.

My client’s injuries were limited to a simple fracture of the left tibia, a haematoma in her right thigh and some abdominal injuries. She did not require surgery. On the face of it, they were of a type from which a patient without any underlying health conditions would normally recover within a period of a few months and certainly less than 12 months.

Orthopaedic evidence was obtained which largely confirmed that the client’s loss of strength in her left leg could not be explained. A neurological opinion was then obtained with the expert concluding in short, that multiple sclerosis as a condition cannot be caused or accelerated by trauma, albeit the expert did accept that her symptoms were probably exacerbated by the accident (by her other orthopaedic injuries) for a short period.  The neurologist felt that our client’s condition has simply progressed in the time between the accident and her discharge from hospital and that this was essentially entirely coincidental. Of course, it is also entirely possible that an injured party could develop multiple sclerosis (having not had any symptoms previously) following trauma.

Given that the cause of multiple sclerosis (being a neurological auto-immune condition of the brain and nervous system) has not been scientifically established, whether the condition can be caused by trauma remains debatable. It is also a condition that is not necessarily easy to diagnose (which is something to keep in mind when symptoms arise after trauma). In simple terms, although the condition is caused by the body’s immune defences going on the offensive, the trigger for why they do this is not clear. Although there are 4 different type of multiple sclerosis most are progressive. There is no cure for the condition although symptoms of relapse can be treated with steroids. It affects the senses as well as mobility and function.

For the purposes of a personal injury claim, it must be established that the link is probable in any individual case rather than simply possible. In addition, there are numerous causation problems with establishing whether trauma has caused a client’s multiple sclerosis and particularly where symptoms have developed shortly after an accident. The main one would seem likely to be the absence of any testing for multiple sclerosis before the accident. In such circumstances it would be difficult to rule out the possibility that the condition might not have been developing before the accident took place.  Another area of difficulty is if an injured person, then develops multiple sclerosis after the accident, how long afterwards can the condition be linked to the trauma on the balance of probabilities?

Further, even where a neurological expert believes that there is a link between trauma and either the onset or progression of multiple progression, it seems that, given the neurological basis of the condition, serious injury to the brain or the spinal cord would be required. Minor head injury or even serious orthopaedic injury would seem to pose causation problems.  However, even in a case where there is brain or spinal cord injury followed by the development or advancement of the condition, medical science is still at odds over whether a link can be established. It is interesting that the condition is three times more prevalent in women, but that head injury is much more common in men.

It should also be considered, where liability for the accident is in dispute, whether the injured person’s multiple sclerosis condition may have been the cause or a contributing factor because the condition affects the senses and balance and particularly in cases involving trips or slips.

The issues raised above are covered in more detail in an article in the Journal of Health and Biomedical Law, XVI (2019): page 1-28, Suffolk University Law School but Jack E Hubbard MD PhD and Samuel D Hodge, Jr Esq.  The article also provides a summary of some of the available US and UK case law on the topic.

There is very little relevant case law the bulk of the decided cases were decided at the turn of century, but none ended well for the Claimant albeit that it is possible that cases with greater prospects of success settled before trial. The case of Mather v Ministry of Defence [2021] EWHC 811 (QB), [2021] All ER (D) 01 (Apr) refer to a split trial application in case involving the onset of multiple sclerosis albeit that it is unclear what the eventual outcome of this case.

The relevant most recent UK case law appears to be:

• Mbutu v De La Rue Brown [2005] All ER (D) 147 (Mar)
• Lochead v Ellis [2002] All ER (D) 19 (Aug)
• Nixon v F. J. Morris Contracting Ltd (2001) Times, 6 February, [2000] All ER (D) 2418
• Dingley v Chief Constable of Strathclyde Police 55 BMLR 1 HOUSE OF LORDS