The complexities of personal injury litigation where there is a diagnosis of FND

By Huw Ponting, Partner and Head of Personal Injury Enable Law, and Dr Edmund Bonikowski, Consultant in Rehabilitation Medicine and Founder of NRC Medical Experts

Enable Law Solicitors specialise in complex personal injury and clinical negligence supporting individuals who have experienced a traumatic brain injury caused by another’s negligence.

We work closely with treating professionals and medicolegal experts to identify our clients’ rehabilitative needs in the context of their ongoing litigation.

Huw Ponting, Partner heads the Personal Injury team and has a practice which focuses on complex brain injury litigation.

Dr Edmund Bonikowski is a Consultant in Rehabilitation Medicine with over 30 years’ experience having held acute and community-based NHS posts in neurological and amputee rehabilitation.

NRC Medical Experts was set up in 2015 to provide medicolegal reports in this specialist sector with a particular focus on neurorehabilitation medicine, neuropsychiatry, neuropsychology and neurology.

It is now part of RCI Group.

In this article we discuss the often-complex challenges posed by a diagnosis of Functional Neurological Disorder (FND) following an accident as a consequence of which the Claimant then seeks to recover damages from a third party.  It is a feature of an ever-increasing number of claims.

The Legal Perspective

Whilst many personal injury claims can be difficult and complex from the perspective of the medical science involved, FND poses particular challenges often around proving its legitimacy in our adversarial legal system.

It is a relatively new feature in personal injury litigation, but one that is becoming increasingly common.

The evidential burden sits with the Claimant to prove his losses, which in turn necessitates proving that any condition (in this case FND) was caused by the alleged negligent breach.

Not only can causation be a challenge, but also diagnosis in the first place as well as treatment and prognosis.

Practitioners must be prepared to deal with diagnostic uncertainty, divergent medical opinion as well as additional challenges such as surveillance evidence and the assertion that the Claimant might be exaggerating or malingering.

To understand the particular challenges that such a diagnosis may pose it is first useful to consider, without stepping on the toes of medical colleagues, the history of the condition and the terminology used to describe the condition.

Historically the medical profession has referred to the condition variously as hysteria, conversion disorder or non-organic illness.

As the condition has become better understood there has been a move away from the perception that FND is solely a psychological condition (psychological stress has been removed as a requirement for diagnosis) and instead to focus on neurological symptoms.

It has become a positive diagnosis relying on identifying specific markers or symptoms, rather than one that involves the exclusion of possible causes.

Those encountering FND legally or medically will likely acknowledge that the relationship between symptomatology and diagnosis can be a difficult one.

It is not unusual for FND to first be considered as a diagnosis as part of the medicolegal process in ongoing litigation. It may be the first time the Claimant has received such a diagnosis.

The challenge for the medicolegal experts can be significant.

The condition can present with a wide range of symptoms: non-epileptic seizures, movement disorders, limb weakness, paralysis, visual disturbance, speech impairment and reduced cognitive and executive function being common.  Not all FND will be trauma related.

It can be triggered or exacerbated by physical and/or psychological trauma but also may be dormant in those who may have a complex history of previous trauma, abuse or other stressful life events before their index accident.

The period of time between the trigger accident and the onset and progression of the condition can vary significantly.

There is no direct correlation between when FND develops and the symptoms experienced to the severity of the injury sustained.

We know that the condition changes how the brain works rather than there being damage to the structure of the brain itself.

A common analogy used with patients is that “the road system remains intact but the lights and signals controlling it have become dysregulated”.

Symptoms of FND are neurological but without clear structural brain disease. There is no specific diagnostic test.

Neuro imaging (CT and MRI) will often be normal. The condition is functional rather than organic in origin. There is a lack of organic explanation.

So, what does all this mean for the legal team?

It is important, and indeed there is a duty to obtain all relevant documentation as part of the obligation of disclosure.

This obviously includes all medical records which should be properly paginated and put in good order for the medicolegal experts.

Where there have been significant life events prior to the trigger accident then the net may need to be cast more widely than that which is immediately obvious.

Detailed witness statements should be taken from the Claimant as well as anyone else whose testimony will be important to the experts.

The Claimant may have the benefit of a multi-disciplinary team (MDT) whose observations will also be important.

The volume of relevant medical and other records for consideration by medical experts can be very substantial, as therefore can the time required for appropriately detailed review of these.

And what of the medical disciplines that will be required? Diagnosing FND sits principally with the disciplines of neurology and psychiatry.

Only experts with a deep understanding of the condition should be considered and they should be given as detailed a letter of instruction as possible.

There is an obligation on the legal team to also have a good understanding of what is a complex and often misunderstood condition. That requires specialist knowledge and understanding.

The evidential burden of proof sits with the Claimant.

How the law deals with compensating those alleging that the condition has been caused or contributed to by the negligence of a third party is evolving as the understanding of the condition by the medical profession is itself improving.

The symptoms experienced by the Claimant may be having a significant impact on many aspects of their life: whether it be relationships, the ability to work or the care and treatment that they require.

Depending on their symptoms there may be times when they can function well and others when they can be significantly debilitated.

It is the usual practice in claims of potential high value for Defendants to commission surveillance of the Claimant.

It is right of course that Defendants have the opportunity to properly investigate or interrogate claims that are made, but at the same time we must not lose sight of the complexity of the condition, the evolving understanding of it and that there is a risk of mislabelling the Claimant as one who is exaggerating their condition when in fact they are entirely genuine.

Someone suffering from FND may vary in how they present. They may not be impacted by the condition all of the time.

Reviewing short periods of time may not be representative of the cumulative effect that the FND may have. It is more complex than good days and bad days.

Symptoms can vary greatly throughout any given day. Fluctuations can be impossible to predict.

The consequences for the Claimant can be severe, particularly when the Defendant invokes the maxim of Fundamental Dishonesty.

A finding of such – often based on a claim that the Claimant is exaggerating their symptoms – can lead to the dismissal of the entire claim.

Treatment can further add to the complexity. There is an overlap of neurology, psychiatry and psychology and limited specialist centres that can offer in-patient treatment.

There may be significant secondary symptoms such as pain, anxiety and/or depression.

It is not uncommon for medicolegal experts to recommend that treatment should wait until the stressor that is the litigation has been concluded.

FND requires greater recognition and understanding by the legal profession in order that Claimants might be treated fairly and achieve a just outcome.

Our adversarial system, challenges around diagnostic uncertainty, suggestions of exaggeration and malingering only result in this being a difficult area for both lawyer and doctor alike.

The Medical Perspective

For up-to-date detailed background information on FND the following passages from the National Institute of Neurological Disorders and Stroke (NINDS) are helpful.

What is functional neurologic disorder?

Functional neurologic disorder (FND) refers to a neurological condition caused by changes in how brain networks work, rather than changes in the structure of the brain itself, as seen in many other neurological disorders.

Physical symptoms of FND are genuine but cannot be explained by changes in the brain structure. The exact cause of FND is unknown.

FND symptoms may include:

• Seizure-like episodes
• Movement problems
• Problems with cognitive function
• Dizziness
• Speech difficulties, such as sudden onset of stuttering or trouble speaking
• Problems with vision or hearing
• Pain (including chronic migraine)
• Extreme slowness and fatigue
• Numbness or inability to sense touch

FND can cause multiple symptoms that significantly interfere with how a person functions and copes with daily life. Symptoms of FND are not intentionally produced and can involve any part of the body.

Symptoms may appear suddenly, increase with attention to them, and decrease when the person is distracted.

Brain imaging (like MRI and CT scans) and other neurological tests are often normal in a person with FND.

However, research studies that have used functional neuroimaging and neurophysiology (both of which focus on how the brain works rather than what it looks like) have demonstrated changes in the connections between different regions of the brain in people with FND. In FND, the brain is unable to send and receive signals properly.

Additionally, the sense of agency or that one is controlling one’s own actions, is impaired.

Many research studies have showed that people with FND have increased activity in limbic system, which deals with emotions and behaviours, resulting in problems with regulating emotion and responding to stress.

There are many types of FND, with a diverse mix and range of neurological symptoms. For some people, symptoms are short-lived. In others, they may last for years.

The two most common categories of FND are functional or dissociative seizures (also known as psychogenic nonepileptic seizures (PNES), and functional movement disorder.

Who is more likely to get functional neurological disorder?

Anyone can develop FND. It is more common in women and can affect both children and adults.

Most people with functional movement disorders begin to have symptoms around their late 30s. Symptoms of functional seizures most often begin in a person’s late 20s.

FND involves biological and sociological factors. While risk factors in adults include exposure to psychological stressors and a history of childhood adversity, those factors are not seen in all people with FND.

In children, risk factors can include family problems, bullying, perceived peer pressure, and abuse.

It is common for people with FND to also have depression, anxiety, or post-traumatic stress disorder. Some studies suggest that genetic or environmental factors may affect a person’s risk.

How is functional neurologic disorder diagnosed and treated?

Diagnosing FND

There is no single test or biomarker (biological sign of disease) to confirm the diagnosis of FND.

Diagnosis of FND is made based on the person’s history, symptoms, and a physical examination.

There are some signals that indicate FND, including Hoover’s sign (a physical test to identify functional weakness in the legs), and what is called “entrainment” for tremor.

Entrainment involves moving the unaffected or less affected limb at a certain rhythm to see if the limb experiencing tremor responds.

A doctor will assess the person’s health, family history, and medical history to rule out any neurological or other conditions that may cause symptoms. FND can co-exist with other disorders.

The healthcare team will look for specific triggers and patterns of symptoms to help make a diagnosis.

Doctors may order tests, which can include imaging scans like EEG (electroencephalography, which monitors the brain’s electrical activity), or EMG (electromyography, which records the electrical activity in muscles).

These can help rule out other disorders and examine symptoms such as tremor, weakness, walking trouble, and vision problems.

Treating FND

Strong, two-way communication between the healthcare provider and the patient is important for effective treatment of FND.

This will help improve the patient’s understanding of the disorder and involve them actively in their own treatment.

A team of doctors and health professionals from various specialties should work together with the individual to deliver a combination of treatments and comprehensive care.

Currently, the two main treatment approaches include physical therapy and psychotherapy. Medications may help with certain symptoms.

Psychotherapy: 

Psychotherapy involves talking with a licensed and trained mental health professional about negative or troublesome emotions, behaviours and thoughts.

Cognitive behaviour therapy (CBT) can help a person modify their thought patterns to change emotions, mood, or behaviour.

Psychodynamic therapy can help people identify and resolve patterns in thoughts, beliefs, and emotions that may cause some of the neurological symptoms.

Relaxation and mindfulness exercises can help reduce stress. Some individuals benefit from hypnosis to induce relaxation and lessen FND symptoms.

Medications: 

Medications are available to treat pain, anxiety, depression, insomnia, and headache that may occur with FND.

People with functional seizures should not take anti-seizure medications. Anti-seizure medications do not treat functional symptoms like they do epileptic seizures and might even worsen the symptoms.

Other treatments:

Some studies of transcranial magnetic stimulation (TMS), which uses magnetic fields generated outside the skull to stimulate nerve cells in the brain, have shown promise, although results have been mixed.

Transcutaneous electrical stimulation (TENS), which uses low-voltage non-invasive electrical current to activate nerves, can be useful for relieving certain pain in people with FND.

People with functional or dissociative seizures should try to identify warning signs and learn techniques to avoid harm or injury during and after the seizure, and should be aware that relapses and flare-ups often recur, despite treatment.

What are the latest updates on functional neurologic disorder?

The US organisation the National Institute of Neurological Disorders and Stroke (NINDS), a component of the National Institutes of Health (NIH), the leading supporter of biomedical research in the world, is the primary federal funder of research on neurological disorders.

Scientists funded by the NIH are working to better understand the underlying neurobiology and pathophysiology of FND using MRI (magnetic resonance imaging) to develop neuroimaging biomarkers, biological signs of disease that can be used for diagnosis, risk assessment, or to monitor progression, for FND.

Among other research, investigators hope to develop a test to diagnose and better treat FND.

In the medicolegal context FND presents unfamiliar complexity to injured clients and legal teams.

This is unsurprising given that only in recent years have the medical professions managed to grapple with it in a clearer way and one which offers hope to those affected.

Importantly, FND can coexist alongside other more familiar neurological disorders such as acquired brain injury or spinal cord injury or psychiatric disorders such as depression, anxiety or PTSD.

Just because a client is diagnosed with FND does not mean that all their symptoms should be interpreted in this way.

A helpful model for understanding FND is that of Predisposing, Precipitating and Perpetuating factors.

Predisposing factors may include psychological stressors and childhood adversity such as emotional, physical or sexual abuse.

A serious traumatic injury may be an obvious precipitating factor, and the ongoing litigation process may be a perpetuating factor.

While it is essential to ensure that other neurological disorders are identified, it is equally important to ensure that other psychiatric diagnoses are considered including Dissociative Disorders, Personality Disorders, Factitious Disorder and Psychosis.

Perhaps the most complex distinction in the medicolegal context is between Factitious Disorder and Malingering.

Factitious Disorder is characterised by the unconscious need to assume the sick role and gain attention perhaps to reduce loneliness, while Malingering is a conscious effort to achieve external gains, such as avoiding work or gaining financial compensation.

Malingering is not a formal diagnosis in the DSM-5 but is a recognised behaviour.

The most dangerous situation for a client in relation to their litigation is for a psychiatric diagnosis to be missed and for them to be labelled as malingering because this opens the door to the accusation of fundamental dishonesty.

Expert neurological and psychiatric opinion is essential to establish the right diagnostic framework for a client’s symptoms.

Once this has been done, the rehabilitation paradigm is most appropriate as a basis for treatment to encourage symptom reinterpretation and functional improvement.

Here, psychology, physiotherapy and occupational therapy are most fundamental.

Importantly, not all clients with FND need inpatient treatment as many are managed successfully in the community.

What does this mean for medicolegal experts and solicitors investigating a case involving FND?

In this piece we have explored the medical presentation of a patient with FND and how and why this may further complicate the already challenging litigation process.

FND as a condition is hard to diagnose and the fluctuating nature of the condition can result in the client being perceived as being “dishonest” or “malingering”.

These cases are highly complex and require solicitors with substantial experience to achieve a successful outcome and secure the compensation the claimant needs to address the consequences of their injury.

They also require the instruction of the right experts to fully understand the medical presentation of a claimant, the impact of any comorbidities on their FND and of course to rule out any alternative diagnosis.

At Enable Law we have a dedicated team of solicitors that support clients who have suffered Acquired Brain Injuries and complex neurological conditions because of a traumatic incident.

Our experience means we are able to support clients with complex conditions like FND successfully.

If you have a client or patient you believe we can help please don’t hesitate to reach out to Huw Ponting who leads our specialist team on Huw.ponting@enablelaw.com

Similarly, NRC Medical Experts are able to offer an extensive number of highly skilled experts across a range of medical disciplines whether undertaking complex medico legal reports or overseeing an individual’s rehabilitation to help maximise their outcome through joined up care and therapeutic oversight.

Their team are always happy to undertake a pre-instruction conversation to discuss a particular case at enquiries@nnrc.org.uk