Unmasking Functional Neurological Disorder – truth or dare?

Functional Neurological Disorder (FND) is appearing at a greater frequency in personal injury claims.  For every ‘developing’ condition there are a raft of specialist claimant firms presenting cases seeking high damages awards and large costs payments. Cases can be tricky and lengthy and require detailed investigation, appointment of appropriate experts and appreciation of the causation of such an unusual condition. Whilst FND is a genuine condition, symptoms may be exaggerated or even non-existent. Forensic investigations are necessary to reveal the true picture.

A case in point: A million-pound claim questioned

A recent case we dealt with shows the typical issues to consider.

A manual worker in his 40’s was injured in a road traffic accident suffering physical injuries. It was not a severe collision, and recovery should have taken place within two years. He had been experiencing fits before the accident which apparently stopped after the accident and, in their place, the claimant developed involuntary shaking of his upper limbs. He couldn’t hold a kettle or a phone (there was a claim for four replacement iPhones) and, as such, the care and domestic assistance claim exceeded £1,000,000. Unsurprisingly the claimant was unable to work in any capacity.

Challenges in medical evidence

The claimant’s medical experts diagnosed FND. Our own experts were bullish in conference in commenting on a wealth of inconsistent evidence but, in their reports, were not willing to commit, preferring to present their conclusions in the alternative so giving the claimant the benefit of the doubt. This is common where many of the symptoms are subjective and/or variable.

In an FND claim symptoms are often out of proportion to the organic injury or neuro imaging. It’s entirely possible to suffer alongside an organic condition and symptoms can fluctuate (so surveillance doesn’t always help if a ‘good’ day). Other intelligent searches may reveal more by way of patterns of behaviour.

In this case surveillance evidence showed the claimant smoking a cigarette and holding and drinking from a cup. Clearly both dexterous tasks. Despite this the claimant maintained that symptoms were genuine.   

The claimant accepted a settlement of £100,000 as against a pleaded value of over £1,500,000, which both recognised the risk to the defendant and demonstrated significant flaws in the claimant’s case. It reflected the genuine nature of the condition but there were clear concessions in relation to exaggeration of, or inappropriate, symptoms.

Spotting the symptoms and red flags

There are often early warning signs early in a case and we typically see the following – by no means an exhaustive list.

• Motor – Tremor, weakness of limbs, gait disorders, jerks/tics or even paralysis
• Sensory – Loss of vision, intermittent or reduced visual acuity, pins and needles, sensory overload (light too bright or noises too loud).
• Cognitive – Fatigue, issues with memory or concentration. 
• Dissociative Seizures – Similar to epileptic fits (often mis-diagnosed as such). 

Looking beyond the index accident

In defending these claims, we need to be aware of factors other than the index accident which may cause such varied symptoms and investigate medical and employment history, looking for issues including psychological stress, any pre-existing personal or traumatic events, previous physical illnesses and/or other mental disorders.  

There is often a degree of attention seeking behaviour with the sufferer repeatedly attending the GP or hospital for medical investigations despite repeated negative findings and reassurances by doctors their symptoms have no physical basis. Medical records may show the number of hospital departments a claimant has attended. 

Cases may last for years which has a negative costs impact. There is no pattern to the progress of such claims especially where a claimant is entrenched in his illness. Spotting the signs of a possible FND case early is key and adopting caution where there seems to be a delay in medical report disclosure in what should be a straightforward organic injury case.