All hope is not lost – the potential benefits of later stage rehabilitation in brain injury cases

When I was 15 my Grandfather had a stroke. I clearly remember in the early days of his admission being told that any improvements would likely be confined to the first six months or so and beyond that things would likely remain fixed. The only rehabilitation (if it could even be legitimately called that) consisted of a doctor giving my mother some picture cards to work through with him which in the limited visiting hours available, and in between her full-time job and looking after three children, she endeavoured to work through with him. After a month or so he was discharged and lived the remaining 13 years of his life heavily disabled with no observable improvement.  Whilst such treatment may seem outrageously poor (particularly noting this was 2001), sadly, in my experience as a lawyer dealing with brain and other serious injuries, not much has changed.

In my experience at least, brain injury rehabilitation via the NHS tends to remain minimal and ad hoc. I have lost count of the number of clients with ongoing serious injuries who tell me they have either been discharged from the NHS or vaguely recall a discussion about onward referral, which invariably does not materialise. The issue can then be compounded by the fact many brain injury victims struggle to engage with the system such as missing appointments and then being discharged, failing to understand how to implement any home rehabilitation exercises, being unable to press for further referral and treatment etc.

An increasingly key principle of the litigation process, is the need for the parties to work together in relation to rehabilitation. A personal injury victim is typically expected to do all they can to improve their position and courts will inevitably look harshly upon defendants (and their wealthy insurance representatives) who do not assist financially with such rehabilitation.  Therefore, for many people the litigation process can open the door to high quality, privately funded, rehabilitation that may either be otherwise beyond their financial reach or perhaps unavailable via the NHS.

Typically, however, such considerations only come into play some time after their discharge from emergency/national healthcare environments: naturally, injured people and their families are not inclined to think about entering the legal process in the immediate aftermath of a serious injury. Therefore, to allow time for people to complete urgent/national healthcare treatment, find a lawyer, a claim to be investigated and put to the opponent’s representatives and then for a rehabilitation assessment to take place (if offered by the opponent), it can often be a year or more on from the injury before even the first rehabilitation assessment takes place.

However, the delays do not stop there. Those undertaking the initial rehabilitation assessment will typically have limited data at their disposal, particularly if the NHS has done little in the way of investigation up to that point. To give a real-life example of a current brain injury client of mine: despite the injury occurring in 2016, by 2020 she had not undergone any cognitive testing whatsoever.  Unhelpfully, someone with limited pre-accident knowledge of the client had made a remark in the Emergency Department to the effect that her personality did not appear much altered by the accident, which appears to have encouraged a “stand easy” approach.  In 2020 she underwent detailed cognitive testing at the hands of an expert witness neuropsychologist as part of the litigation which revealed extensive compromise, in a pattern entirely consistent with the site of and severity of her head injury. Therefore, it is often only upon sight of such expert reports, which can come years into the litigation for various reasons that are beyond this article, that rehabilitation agencies come to appreciate the true nature of a person’s injuries.

So, returning to the opening premise of this article – where do we stand when an injured person’s injuries, and therefore rehabilitation needs, are only truly appreciated years on from the injury?  Is there still hope for meaningful improvement?  Expert witnesses may still suggest trying various treatments but, in my experience at least, these are invariably accompanied by caveats regarding the length of time on from the injury.

In my view at least, in many cases hope is still very much justified, even many years on from the accident.  Brain injury rehabilitation centres will often share with me success stories of significant improvement in people injured years earlier.  Consider the below example kindly provided by BASIC – a Manchester-based charitable brain and spinal injury rehabilitation centre:

‘Anthony, who is 37 years old, suffered several brain tumours in his late 20’s which required major surgery and radiotherapy. On Boxing Day in 2018 he had a haemorrhage in the brain (stroke) leading to a dense left sided weakness. This was devastating to him and to his Mum. He received inpatient and community rehabilitation on discharge from the hospital but the effects were limited.

2 years later Anthony came to BASIC in Salford, he was in a wheelchair, his left arm was non-functional but he had core strength and activity in his legs   He was low in mood and Mum felt he needed to be challenged so motivation could start to become apparent and then maybe he could get walking independently without needing to always have 2 people to get from A-B. Anthony was eager to try following his viewing of the virtual reality CAREN, so following hands -on preparation with the physio team he had 12 one hour sessions of VR over 8 weeks.

Anthony achieved his goal of walking independently with a quad stick in his house, was able to stand up and clean his teeth in the bathroom! In spite of more than 2 years down the line, recovery was still possible, realistic goals achievable, and he was given opportunities and new challenges by using virtual reality as a tool for rehabilitation.’

This is an excellent example of the successes possible with new approaches to rehabilitation, such as BASIC’s pioneering virtual reality system, long after discharge from the NHS.

Alongside much credible anecdotal experience there is (at least for the more science-geeky type lawyers like me) support also to be found in popular science works. In a personal favourite of mine: The Mind & The Brain by Jeffrey M Schwartz MD and Sharon Begley, the authors explore various real-life examples of drastic rewiring/neuroplasticity of the brain well into adulthood and in fact throughout life.  It’s well worth a read for anyone with an interest in longer-term neuroplasticity, particularly the parts looking at re-mapping of the brain well into adulthood such as following amputation injuries.  Sticking with my popular science reading list, in A User’s Guide to the Brain, John Ratey MD describes the brain as “so complex, and so plastic, that it virtually impossible, except in the broadest fashion, to predict how a given factor will influence its state.”  Similarly, the book explores various real-world examples of the brain’s flexibility and ongoing capacity for remapping.  There are many more works in a similar vein but my intention here is not to make the scientific argument; my point, rather, is that from the outside at least it feels as if the evidence for longer-term neuroplasticity (and therefore capacity for late-stage rehabilitation improvements) is gaining not only increasing acceptance but, more crucially, awareness amongst the public.

Family members know how important these “little victories” can be, such as the patient in the example above being able to walk independently with his quad stick and to stand up and clean his teeth on his own.  Perhaps my Grandfather could have made improvements over the years beyond those first few months – as a family we did not know what might have been possible and placed our faith in the NHS to do all that was possible for him. Hopefully in years to come governmental approaches to healthcare will shift more towards after-care and longer-term management, perhaps with increased funding, recognition of and referrals to rehabilitation centres offering new and varied approaches, such as virtual reality.

From the perspective of a lawyer, all one can perhaps do is to fight vigorously for all possible rehabilitation, and to advise the client and their family to continue to explore all treatment avenues, notwithstanding discharge and/or lack of progress within their national healthcare system. We cannot provide medical advice as such, but I take the view we can, and perhaps must, encourage keeping an open mind when it comes to rehabilitation, and to do all we can to ensure they are able to make the very best possible recovery.

By James Winterbottom, Serious Injury Solicitor at Aston Knight