Do I have to have my operation via the NHS?

Question

I was involved in a cycling accident last year and, as a result, I need to have an operation on my wrist. The car driver responsible for the accident said that he was sorry and that he simply didn’t see me until it was too late.  The solicitors acting for his insurance company have confirmed that liability is admitted. Despite admitting liability, his insurance company is refusing to pay for the surgery that I require, they say that I should have the operation on the NHS. Due to Covid, there is a very long waiting list on the NHS and, with it being the wrist on my dominant hand that was injured, I am struggling to do my job. I have told my solicitor how desperate I am to undergo surgery but he does not appear to be fighting for me on this point. Is it possible to make the other side pay for me to have a consultation with a surgeon and undergo the operation on a private basis?

Answer

Under Section 2 (4) of the Law Reform (Personal Injuries) Act 1948, all the costs of medical treatment, travel to treatment and private care are recoverable providing they are ‘reasonable’.

The Claimant is under no duty to use the National Health Service. The Law Reform (Personal Injuries) Act 1948, s 2(4) states:

“in an action for damages for personal injuries…there shall be disregared, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities under the National Health Service.”

This means that you are entitled to private treatment and do not have to use the NHS for your surgery. Your solicitor should request an interim payment to cover the cost of the surgery and, if the payment is not issued, an application can be made to the court for the required amount.

When requesting the interim payment your solicitor can explain that by refusing to pay for the private surgery, they are delaying your recovery, which is likely to increase the value of your claim and associated legal costs in the event that you are forced to make an application for the funds.