Care Evidence and Future Loss in Clinical Negligence Cases – Why Assumptions Matter Increasingly

By Shelley Carrick-Forrester, Underwriter

Estimate read time 4 minutes 37 seconds

Determining a client’s future care needs and long-term loss is one of the most significant responsibilities in clinical negligence work. In high-value cases in particular, early assumptions about care, accommodation and future support can shape valuation, negotiation strategy and even underwriting comfort for years to come.

Getting those assumptions right at the outset does not just influence quantum. It affects how the case progresses, how experts are instructed and how confidently parties can move towards resolution.

Scope of duty

Before future loss can be assessed, the scope of duty must be clear. In clinical negligence claims, the court must consider whether the harm claimed falls within the risks the defendant was under a duty to guard against.

In Khan v Meadows, for example, the Supreme Court confirmed that liability is limited to losses flowing from the specific risk the professional was obliged to protect against. This reinforces an important point: not all foreseeable loss is recoverable. Future care and associated costs must be linked to the breach in question.

Clarity on scope of duty at an early stage provides a framework within which care evidence and future loss can be assessed realistically.

Care costs and future loss

The scale of future care costs in serious claims underlines why early assumptions matter. The National Audit Office reported in October 2025 that the highest-value clinical negligence claims often involve maternity-related brain injuries, with average compensation exceeding £11 million. A substantial proportion of that relates to long-term care, accommodation, therapies and loss of earnings.

Care costs are frequently the largest element of the claim. Early assumptions should address:

• The type and level of care required
• Whether care will be agency-led, family-supported or mixed
• Supervision and night-time needs
• The likely trajectory of improvement or deterioration
• Whether appropriate care provision can realistically be sourced

These assumptions also influence whether damages are better structured as a lump sum or through periodic payments, particularly where inflation and staffing pressures are relevant.

Clear assumptions guide expert selection and reduce duplication. They also provide greater certainty for all involved, including the ATE underwriter.

Why assumptions matter in practice

Well-formed assumptions can make negotiations more focused and constructive. They support joint expert discussions, enable mediation to take place earlier and narrow the issues genuinely in dispute. Offers are more likely to reflect shared understanding rather than defensive positioning.

Where assumptions are unclear or late, negotiations often become cautious. Both sides factor in uncertainty, early offers widen and mediation can become an exercise in information gathering rather than settlement.

Accurate early assumptions also reduce the risk of duplicated expert evidence or reports that later prove unnecessary or unrecoverable. This is particularly relevant in high-value cases where disbursement spend can escalate quickly.

Underwriting ‘comfort’

From an underwriting perspective, clarity around care and future loss assumptions helps ensure that cover remains aligned with the needs of the case throughout its life.

Most Temple clinical negligence policies operate under delegated authority, allowing firms to instruct appropriate experts without seeking separate approval. However, in the event of a claim on the policy, the reasonableness and recoverability of disbursements will inevitably be examined. Clear, well-reasoned early assumptions make that process smoother.

Temple’s policies are designed with limits that, in the vast majority of cases, comfortably support the full duration of the claim. Where exceptional circumstances arise, additional cover can be arranged. Establishing realistic assumptions at the outset helps avoid avoidable shortfalls at critical stages.

If you would like to discuss how care evidence and future loss assumptions may affect a current or forthcoming claim, please call Shelley on 01483 514817 or send an email to Shelley.Carrick-Forrester@temple-legal.co.uk