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Title: Can I force them to pay private surgery costs?

Date: 18 November 2015

Can I have private surgery?

Please give me some guidance as my solicitor seems to not be arguing my case strongly enough and I would like something concrete to put to them and you seem like just the man to help! I really need to have an operation on my ankle caused by my bike accident last year. The issue I have is that the insurer for my opponent won’t pay for it despite them admitting the accident was the fault of their driver. They say I should have the operation on the NHS. There is a very long waiting list on the NHS and my local private hospital has a very highly regarded foot and ankle surgeon I would like to do the surgery. I have read that I don’t need to go on the NHS so can I make the other side to pay for me to see a private surgeon for the operation?

Kathryn Evans, Pontyclun

Answer

You definitely do not have to utilise the NHS for your surgery. It is very common for insurers and Defendant solicitors to attempt to insist that Claimants undergo surgery on the NHS. This is because it is cheaper for their clients (the insurers of the person to blame for the accident). They often refuse to make an interim payment of damages to allow the treatment to go ahead but this can be dealt with by way of an application to the court for the funds. You are entitled to obtain private treatment and the other side has to pay for it. The relevant legislation to bring to the attention of your solicitors is Section 2 (4) of the Law Reform (Personal Injuries) Act 1948.

I suggest your solicitor explains to the insurer that by refusing to pay for the private surgery is (a) delaying your recovery and thereby leading to a potentially increased compensation payment (b) preventing you from complying with your common law duty to mitigate your loss (i.e. keeping it to a reasonable minimum) and (c) it will lead to increased legal costs if you are forced to make a court application for the money. If the surgery is medically justified (and I assume you have an orthopaedic surgeon’s report on your case) then this should be brought to the court’s attention when making the application for funds, if your opponent does not back down and agree to pay for it.

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