Functional Neurological Disorder – trouble ahead?

Functional Neurological Disorder (FND) has been known to the medical community for centuries under various names such as hysteria, which first appeared in 1880. However, the recognition of the specific condition of FND occurred relatively recently and has even more recently inevitably crept into the arena of personal injury claims.

In this article, we consider the definition of FND, how it is treated and what such a diagnosis means for personal injury claims handling.

What is FND and how is it treated?

FND is a medical condition in which there is a problem with the functioning of the nervous system and how the brain and body sends and/or receives signals. FND can encompass a wide variety of neurological symptoms, namely:

  • Limb weakness or paralysis
  • Blackouts – these may look like epileptic seizures or faints
  • Movement disorders including spasms, jerky movements or tremors
  • Visual symptoms including loss of vision or double vision
  • Speech symptoms including slurred, stuttering or whispering speech
  • Sensory disturbance
  • Poor concentration and fatigue.

In terms of treating FND, the starting point is often a medical consultation which allows the patient to see that, whilst they have a genuine condition, it is not caused by any underlying organic cause and therefore, it has the potential for treatment and significant improvement. Neuro-physiotherapy can be an effective treatment for those who have movement or motor symptoms, such as weakness and walking difficulties. Other treatments include cognitive therapies and neuropsychology, in addition to reducing maintaining factors which typically include low mood, poor sleep, maladaptive illness beliefs, side effects of medication (especially opiates), comorbidities such as migraines, and adverse social circumstances (which may include litigation).

Why are FND cases a potential concern for insurers?

There is no organic explanation for the physical symptoms of FND which are often entirely subjective in nature. The causes can also be multi-factorial. This can often lead to an element of scepticism and significant arguments in relation to causation. Further, the accident in question can be relatively innocuous but the impact and effects on the claimant can be debilitating and long-term. As such, the potential value of these claims can be very high with significant rehabilitation/treatment costs, loss of earnings and care costs. We regularly see six-figure quotes for a multi-disciplinary in-patient programme followed by ongoing therapies in the community on an out-patient basis. The costs of investigating such claims can also be very high, with the need for instruction of numerous experts and large volumes of disclosure.

Unfortunately, the diagnosis is frequently not made early enough, resulting in the claimant being treated on the understanding that they have sustained a brain injury. Once that label has been applied, it can be very difficult to dislodge.

Handling FND claims

The ideal approach is to identify potential FND cases (or numerous other chronic pain disorders or even subtle brain injury claims) and rehabilitate or settle them before the diagnosis and disability take root, because the claim itself can be an aggravating factor. However, that is not always possible as they tend to be the claims that defendant insurers hear very little about until limitation.

Although early diagnosis of FND can assist, allowing for the correct treatment to begin for the benefit of both the claimant and defendant, there are inevitably still concerns around causation and credibility. Both parties should be alive to issues around fundamental dishonesty and acceleration arguments.

Obtaining early disclosure of medical records can assist in a prompt decision on causation which can lead to discussions around rehabilitation and treatment. Choosing the right expert team, and engaging in discussions around settlement are of central importance.

Understanding the condition, the experts involved, the treatment possibilities and the technological developments, such as the MyFND app, are of paramount importance.

Comment

FND claims are complex and not well understood. They are potentially expensive claims (in respect of both damages and costs) often arising out of relatively minor incidents. With a greater understanding and recognition of the condition, and with the significant damages and costs on offer, we may well see more of these claims being brought. It is imperative to have the relevant knowledge and understanding of the condition in order to properly challenge the claims.

Read other items in Personal Injury Brief - September 2021