What happens if you get worse after you’ve accepted compensation?

You’ve been offered compensation for your injuries. It’s taken months, perhaps years, to get this far, and you’re understandably keen to put the claim behind you.

But there’s something on your mind. What happens if your condition gets worse, or you don’t recover as well as the doctors expect?

Perhaps your symptoms are still troubling you, your surgeon has mentioned further treatment, or you’ve been warned that complications could develop years from now.

It’s an important question to ask before accepting an offer. In most cases, once a compensation claim has been settled, you cannot go back and ask for more money, even if your health deteriorates considerably.

But there are exceptions.

Usually, no. A full and final settlement is intended to bring a personal injury or medical negligence claim to an end. Once it’s legally binding, you generally cannot claim further compensation for the same injury, even if you subsequently need surgery, become unable to work or require additional care.

This is why it’s so important to consider what you might need in the future, as well as the difficulties you’re already facing. Compensation should allow for reasonably foreseeable losses, including future earnings, treatment, rehabilitation and care.

Our guide to calculating future financial losses explains how these costs are assessed.

It’s also worth distinguishing a final settlement from an interim payment. Receiving money while your claim is ongoing doesn’t usually mean you’ve given up the right to further compensation.

If your condition has deteriorated since accepting compensation, the first thing to establish is what was taken into account when  your claim was settled.

The court may have awarded provisional damages, preserving the right to claim further compensation if a specific complication develops. However, these arrangements are relatively uncommon and must be put in place before the original claim settles.

Otherwise, reopening a settled claim is much more difficult.

There are very exceptional circumstances in which a settlement may be challenged, including fraud or certain fundamental mistakes. However, discovering that your injuries are worse than expected is not, by itself, normally grounds for reopening a claim.

If another solicitor handled your claim and you’re concerned about the settlement, we can look into what happened. Accepting too little compensation doesn’t necessarily mean your solicitor was negligent, although there may be grounds for a professional negligence claim if mistakes were made that left you financially worse off.

This would be a separate claim against your former solicitor, rather than a reopening of your original case.

Professional negligence claims are generally subject to a six-year time limit, although in some circumstances you may have longer if you only became aware of the problem later. A further three-year period may apply, depending on when you knew, or should reasonably have known, the relevant facts. There are limits to this extension, so it’s important to seek specialist advice promptly.

You don’t necessarily have to settle while your medical outlook remains uncertain.

Imagine you’ve suffered a back injury in a road traffic accident. You’ve undergone physiotherapy, but you’re still in considerable pain. Your consultant thinks you may improve, although further surgery remains a possibility.

You’re still managing to work, although it’s getting harder. Then an offer of compensation arrives. If money is tight, you may be tempted to accept it.

As any surgeon will tell you, operations carry risks. Even when they go as planned, there’s no guarantee you’ll be better off afterwards. What happens if you need surgery and can no longer work, or find yourself relying on someone else for help at home? Has the offer taken any of that into account?

It’s important to consider these possibilities before settling, because afterwards it may be too late.

Sometimes it makes sense to wait until there’s a clearer picture of your likely recovery. That doesn’t necessarily mean going without financial help. In appropriate cases, interim payments can help with your finances while the claim continues.

Provisional damages are an exception to the usual rule that compensation settlements are final. They are relatively rare, and the courts do not award them simply because someone’s medical future is uncertain.

Provisional damages are only available where there’s evidence of a genuine risk that the injury could lead to a particular serious disease or serious deterioration in someone’s condition. The risk doesn’t have to be likely to materialise, but it must be a real one.

Even with supporting medical evidence, the court can refuse to award provisional damages. They’re not something an injured person can simply insist upon.

For example, someone who has suffered a traumatic brain injury may face a recognised risk of developing epilepsy. Depending on the medical evidence, provisional damages could protect their position if that risk materialises.

Our earlier article considers provisional damages and the risk of stroke following brain injury.

If provisional damages are awarded, the initial compensation is calculated on the assumption that the feared complication won’t happen. However, if it does, the injured person can apply for further compensation. The court order will specify what deterioration is covered and how long they have to make that application.

Defendants and their insurers generally prefer a final settlement because it gives them certainty about what they’ll have to pay. With provisional damages, they could face another claim for compensation many years later. Understandably, this can make agreement difficult, particularly where the medical evidence is disputed.

Even so, provisional damages can be agreed between the parties and approved by the court.

The relevant law and procedure is set out in section 32A of the Senior Courts Act 1981 and Part 41 of the Civil Procedure Rules.

Before advising someone to accept compensation, we need to understand how their injury is likely to affect them in the years ahead, as well as now.

This often means asking medical experts to look at the prospects for recovery, whether further treatment might be needed and what difficulties the person may face in the future.

Sometimes we advise clients to wait before settling, particularly if further treatment is planned or we need a clearer picture of their likely recovery.

I know this can be frustrating. By this stage, most people have had enough of medical appointments and just want to get on with their lives. But settling too early can leave them seriously out of pocket if their condition gets worse.

Our article on choosing the right medical expert explains why getting the right specialist evidence matters.

By the time an offer of compensation arrives, many people simply want their claim over with. And that’s entirely understandable, particularly when they’re still coping with pain, treatment or worries about work.

At RWK Goodman, we make sure our clients know exactly what accepting an offer will mean. That includes discussing any concerns about their recovery and making sure they’ve had the opportunity to ask questions before deciding whether to settle.

If you’re considering an offer, or your health has deteriorated since settling a claim, our specialist personal injury and medical negligence solicitors can help you understand your options.