UK: Prosthetics - State Of Play

Last Updated: 23 April 2018
Article by Clyde & Co LLP

Most Read Contributor in UK, November 2018

Amputation claims are changing rapidly, as prosthetic technology becomes more sophisticated with associated cost increases. Prosthetic devices are becoming more closely connected to the body they are fitted to and more intuitive to use. Clinicians already discuss concepts such as "intent control" - functionality facilitated by implanted sensors that detect the thoughts of the user and translate them into prosthetic action. Whilst not available in regular clinical use just yet, it is definitely on the horizon. 

These concepts are still unproven in terms of long term outcomes, but it seems reasonable that if such developments are embraced rather than resisted, they have the potential to facilitate a level of function that will reduce costs in other areas, such as care and loss of earnings. 

The backdrop to developments like this is a combination of political interest in rehabilitation of amputees with service-related injuries following recent conflicts, combined with technological and medical possibilities now on offer. By way of example, microprocessor controlled prosthetic knees are now relatively common, and more recently, these have also started to be combined with microprocessor-controlled ankles. At times, the knee and ankle share the control system to make sure that their behaviour is optimised for users in any situation. 

It all contributes to restoring an individual to their pre-accident status as far as possible, which is of course the end goal, but it comes at a cost. A transfemoral prosthesis can now cost above £100,000. Thankfully the sophistication and versatility of these prostheses regularly negates the need for several different prostheses to accommodate different activities, so it is not all bad news.

The mechanism for connecting prosthetics to the body is also being enhanced to improve comfort for users. Osseointegration (the direct structural and functional connection between living bone and the surface of a load-bearing artificial implant) is gaining momentum in the UK. This technology was first considered in the UK in the 1990s and has returned to favour, particularly with veterans and more active users who benefit from improved functionality. It makes it easier to use heavier and more robust technology without the socket related problems such as abrasions and pressure related discomfort. 2018 will see further growth for this treatment which has the potential to give users improved functionality, whilst reducing long term costs of care and loss of earnings.

For younger and medically appropriate claimants, osseointegration looks like a cost-efficient option. Whilst there is an initial capital cost of the surgery and postoperative rehabilitation, prosthetic fitting and associated costs are reduced. The need for regular socket renewals is eliminated. Clinicians who believe in this concept also argue that advanced prostheses utilising osseointegration increase safety and improve the bio-mechanical loading pattern, which in turn reduces wear and tear to the rest of the body. Long term monitoring has yet to prove or disprove this and there is presently little data available to demonstrate with certainty whether this new technology will continue to work over a claimant's lifetime. Furthermore, the long-term maintenance costs are not yet well understood yet and there are of course risks associated with the surgery and the long-term presence of an implant made through the skin (percutaneous).

Historically, frequent changes to the design of the osseo-integration specific part of the prosthesis have been a problem, but the technology now appears to be sufficiently mature for this to no longer be an issue, creating new opportunities for more consistent treatment that will facilitate gathering of long term data.        

Some rehabilitation organisations like PACE Rehabilitation use a very multidisciplinary approach, combining prosthetic and therapy input with patient trials of components to optimise the outcome. This both helps with testing new components to identify those that really have a clinical impact and ensures that proposed prosthetic specifications work well for individuals. It is a cost-effective approach, especially if embraced early on in the rehabilitation as it allows the claimant to get back to an active life quickly. A swift recovery has of course got potential to lower long term rehabilitation and care costs whilst also improving quality of life for the claimant.    

Insurers are beginning to engage with this developing technology and treatment concepts, funding more advanced prosthetics because of the opportunity for claims reduction in other areas. There remains the usual risk that claimant solicitors will find favourable experts who will justify claiming for more expensive prosthetics when there is the possibility that the chosen option is not right for the claimant given their age and lifestyle.

In such circumstances insurers may wish to argue that existing cheaper technology that serves similar functions is reasonable for a particular claimant. Case law notes that courts will not consider defendants' cheaper alternatives if the item claimed is reasonable. The legal burden is on the claimant to prove what is reasonable for their needs in the circumstances. A claimant is likely to overcome this burden if they are presently using the prosthesis and it is built into their care and rehabilitation package. Although the burden of proof should be on the claimant to prove that their choice is reasonable, in practice therefore it appears defendants are required to prove that a claimant's claim is unreasonable.

Insurers need to be aware of this new world and how they approach claims and evidence gathering. There remains the danger of claimant's post settlement behaviour not reflecting what is shown in a schedule. There is a potential conflict of interest if rehabilitation providers are also the claimant's chosen experts, but it is also the case that a treating clinician has a good understanding of individuals' requirements and is therefore well placed to make recommendations. Ultimately, it is best to judge this based on the expertise and integrity of the clinician and the organisation they work within. Insurers need to be aware of when to challenge the reasonableness of claims and seek an understanding of what emerging technology will be most appropriate for a particular claimant.

These advances will impact on the inter-dependent heads of loss for prosthetics, loss of earnings and care. As mentioned earlier, provision of advanced prostheses could result in reciprocal reductions in loss of earnings and care needs. For example, it is open to insurers to argue for some reduction in the care and loss of earnings element of the claim if it can be argued that by using sophisticated prostheses a claimant can return to some form of gainful employment and live independently.

Neural implants and injectable myo-electric sensors (IMES) are exciting areas to watch for the future. Reminiscent of Luke Skywalker's artificial hand, the motor nerves communicate with a bionic hand or foot either directly (neural implant) or via a small electrode embedded in the muscle belly. This creates a very intuitive and accurate way for the user to control the prosthesis by their intent rather than by algorithms in the prosthesis predicting the required action based on what goes on in the environment. Costs escalation will naturally be seen with this technology, but it has the potential to raise the level of prosthetic function very substantially, thereby reducing other losses. In time, advances are likely to ensure prosthetics come much closer to replicating the human limb they replace.

There are clear benefits for insurers in playing an active part in this developing market now so they can fully understand this new technology and encourage rehabilitation professionals to promote it in the right cases in order to ensure the best possible rehabilitation outcomes whilst keeping costs at a reasonable and proportionate level.  

Authors: Peter Walmsley (Partner, Clyde & Co) and Toby Carlsson (HCPC Registered Prosthetist / Orthotist, Pace Rehabilitation)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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