Richard Biggs, senior associate at Irwin Mitchell, takes a closer look at the practical benefits and cost issues related to osseointegration.
I have considered for several years as to how to plead a schedule of loss on an amputation case where a Claimant may choose to undergo osseointegration in the future. Osseointegration is described as follows:- (source London International Patient Services):“OsseoIntegration is an operative procedure used to eliminate the need for a conventional socket prosthesis”.
Put simply, during osseointegration an implant is attached directly to a patient’s bone and left to protrude through the skin. It offers a rapid connection between the prosthetic limb and the stump and also provides an element of stability for the patient’s long term prosthetic use. In my experience of discussing the issues with patients who have undergone osseointegration in the past they all report that it is a lifechanging experience.
It means they avoid the hassle of having to take the prosthetic socket on and off, but they report that the prosthesis feels far more stable than before and allows them to undertake much more activity than using a conventional prosthesis.
Like all surgical procedures, there can be complications so it is important that anyone considering the procedure is well informed before making a decision to proceed.
Historically, osseointegration was generally only available in Australia, Germany and Sweden. That’s changed in recent years and the Royal Free Hospital in London has been undertaking osseointegration since October 2018. Professor Norbert Kang confirms that the Royal Free Hospital implanted eleven cases by the end of 2019 with further surgery dates listed during 2020.
The potential functional advantage for osseointegration is clear to see, but how would that impact upon the pleading of the cost of future prosthetic sockets in a serious injury case? I have dealt with a number of amputee cases over many years and almost inevitably the largest head of loss in a schedule of loss in an amputee case is for the future case of prosthetics.
Naturally, this is dependent upon the age of the Claimant; whether they are an above or below knee amputee; and the types and number of prostheses they will need during their lifetime. The lifelong costs of prosthetics can run into seven figures for a Claimant with a long life expectancy. Part of the prosthetic claim is the need to renew a prosthetic socket many times over a Claimant’s lifetime.
With osseointegration, this need to replace a socket every few years is removed. Does this mean that a Claimant who opts for osseointegration would have reduced annual prosthetic costs as a result? I have given consideration to pleading that osseointegration should be something done in the alternative, i.e. to plead in a schedule of loss that a Claimant wishes to recover the cost of lifelong sockets, but in the alternative may wish to undergo osseointegration.
In that way I could seek to include in the claim not only the potential cost of surgery, but also the costs of flights to Australia and significant follow up care, particularly where if anything went wrong after osseointegration the patient would have to travel back to Australia. Component costs, if they need to be sent from Australia, would also be high.
This would mean that potentially the total costs of, and associated with, osseointegration would be significantly higher that lifelong socket replacement.UK costsHowever, now that osseointegration is becoming more regularly available in the UK, how could this potentially affect the pleading of a schedule of loss?
Typically, I understand that at the Royal Free Hospital a baseline figure of £65,000 is charged for a patient wanting to have a straightforward, transfemoral bone-anchor inserted. I am advised however by Professor Kang that ‘straightforward’ is actually the exception rather than the rule, so costs are usually higher because patients often need to have nerve or soft tissue surgery performed at the same time. Importantly, this cost does not include consumables.
At the Royal Free Hospital they tend to use the OPL system from Australia which requires certain components which will need to be replaced as part of preventative maintenance to ensure that they do not wear out and fail. The components therefore can be changed every two to four years.
The average cost of such components is in the region of £6000 every two to four years. (source: Pace Rehabilitation). Therefore, if a Claimant gave me a firm instruction that they would undergo osseointegration in the future, in theory the Schedule of Loss should plead the cost of surgery in the sum of £65,000 plus components lifelong.
This would give potential costs as follows: Cost of components every three years in the sum of £3000 x multiplier as follows:
Male age 18 x 26.2 x £3000 = £157,200
Male age 25 x 22.66 x £3000 = £135,967
Male age 35 x 19.2 x £3000 = £115,206
I have contrasted this with the potential costs of renewing sockets over a Claimant’s lifetime.
Again, I have used Claimants of the same age to give a broad spectrum and I should stress that these are all male Claimants using life multipliers. I have not allowed any discount but it does give a general indication as to potential lifelong costs. Typically, the cost of sockets annually can vary from case to case.
As mentioned above it depends on below or above knee amputation. I tend to plead that a Claimant will need to renew his socket on average every 2.5 years over his lifetime.Therefore, to give a broad indication as to the potential pleading of a schedule of loss, I have used the figure of £5200 for renewal of a transtibial socket (so £2080 per year over 2.5 years) and £6700 for a transfemoral socket renewal (so £2680 every 2.5 years).
Again, I’ve used a Claimant aged 18, 25 and 35 to give a general indication as to cost. The figures are slightly skewed because the likelihood is that as a Claimant ages he may well be less mobile and sockets might not need to be renewed as frequently. Nevertheless, I have set out below a table which gives a helpful indicator as to annual cost.
I have compared this then to potential costs of osseointegration. A male age 18 might spend £65,000 on surgery and then a further £157,200 on components. This is more than would be spent by an 18 year old transtibial or transfemoral amputee on lifelong socket replacement.
How then to address this in a schedule of loss? As always it is based on the Claimant’s instructions. My view is that if the Claimant is adamant that he will undergo osseointegration then that is how the case should be pleaded, but the Claimant’s solicitor has to be very careful because a Claimant might not be eligible for osseointegration, may change his mind or osseointegration could, in rare circumstances, fail.
Furthermore, where osteointegration costs are higher, it is likely that a Defendant may well argue any such claim is speculative unless the Claimant is very clear about his long term wish to undergo osseointegration. After all, a Claimant is only entitled to recover expenses which are reasonably incurred as a result of an accident and is not entitled to recover a significant figure for surgery if he is unlikely to undergo it.
One option is that where a Claimant wishes to undergo osseointegration then an interim payment should be sought so that the Claimant undergoes the surgery before a case is settled. This might mean seeking flexibility in setting a Court timetable, or it may well mean seeking to stay the claim until the Claimant has undergone surgery and long term prognosis is known.
In this way the solicitor protects themselves because if a Claimant has undergone osseointegration successfully then the cost of osseointegration can be pleaded as a past loss rather than speculating that the Claimant might undergo such surgery in the future.
It is important that the Claimant can access relevant experts who can give clear advice at an early stage. That will make it easier to take very clear and careful instructions at an early stage in the case and certainly before a Schedule of Loss is pleaded and served upon the Defendant. The danger is of course that there might be too much ‘crystal ball gazing’ where a Claimant might wish to consider osseointegration but there are a number of hurdles to overcome before he is able to book in for surgery.
There is always the danger of potential hidden costs of surgery, such as if a component fails or/and needs to be renewed more regularly than pleaded, though such uncertainties in litigation are very common when pleading a significant value case subject to all sorts of contingencies that life may throw at them.
Finally, a medico-legal expert in the case (usually a consultant in rehabilitation or orthopaedic surgeon) will need to provide support in their expert report that the Claimant is a suitable candidate for osteointegration, as without that, a claim for surgery costs will fall at the first hurdle.
In conclusion, a bare comparison of costs as set out above does not tell the whole story. Whilst the end result of a personal injury claim is the award of damages, the ‘journey’ rather the ‘destination’ is always the most important part of the case in my view, namely attempting to help a Claimant return to as good a quality of life as he or she can lead following a serious accident. Osseointegration can be a sensible procedure for many amputees who meet the criteria.
What the above figures don’t show is the potential for osseointegration to improve a Claimant’s quality of life and the effects on social and economic wellbeing, and this is the most important consideration of all when advising a Claimant on settling a claim.
Richard Biggs is a senior associate solicitor at Irwin Mitchell.
