Future Nutritional Care in the Schedule of Loss: What a Dietetic Quantum Report Should Cover

Most of what is written about dietetic expert evidence concerns breach: whether nutritional care fell below standard, and whether that caused harm. A large share of the nutritional evidence in catastrophic injury claims is about something else entirely. It is about what the claimant will need, for the rest of their life, because of an injury whose cause may not be in dispute at all.

After the Supreme Court's decision in CCC v Sheffield, life expectancy carries more of the value of a catastrophic paediatric claim, because the same life expectancy figure now drives both the period over which future needs are costed and any lost years claim. Nutrition is one of the heads most often under-specified. As an HCPC-registered dietitian, I accept instructions to report on nutritional condition and prognosis, and on future nutritional needs, in brain injury, cerebral palsy and other catastrophic injury claims.

Two different instructions

A breach and causation report asks whether care was negligent and what it caused. A condition, prognosis and needs report asks what the claimant's nutritional condition is now, how it is likely to change, and what nutritional care, products and professional input will be required to manage it. The two call for different evidence, and an expert can be instructed on either, or both. In each case the expert's overriding duty under CPR Part 35 is to help the court on matters within their expertise, whichever party instructs or pays them.

What future nutritional needs typically include

For a claimant who is tube fed, the needs will usually include the feed itself, giving sets, syringes and other consumables, a feeding pump with its servicing and replacement cycle, and the replacement of gastrostomy devices. For a claimant who eats orally with dysphagia, they may include thickeners, texture-modified diets and the additional preparation they require. Many claimants need oral nutritional supplements, specialist products or adapted equipment for at least part of their life.

Running through all of these is professional input: dietetic review at a frequency that matches the claimant's stage of life and stability, with more intensive input around transitions such as growth, puberty, changes of placement, and the move from paediatric to adult services. Carers need training, and that training needs refreshing as carers change.

How needs change across a lifetime

The commonest weakness in a needs report is treating the current regimen as permanent. A child's nutritional requirements change continuously as they grow, and the regimen in place at the date of the report is rarely the regimen that will be needed at 15, 30 or 50. Some claimants progress from tube feeding to partial oral intake. Others move the other way as swallow function or general health declines. A report that does not set out the likely trajectory, and the clinical basis for it, leaves the schedule exposed on cross-examination.

Where these claims are most often weak

In my experience the recurring weaknesses are needs stated without a clinical rationale, no account of change over time, items that duplicate what is already claimed in the care, speech and language therapy or case management reports, and costs that cannot be traced to a source. Each of these is easily avoided at the drafting stage and difficult to repair once a schedule has been served.

The interfaces with other experts are where duplication happens. The dietitian specifies the nutritional need. The speech and language therapist addresses swallow safety and texture. The care expert costs the carer hours needed to deliver feeding. The life expectancy expert gives the horizon over which all of it runs. Agreeing that division early avoids two experts claiming the same item and a third assuming someone else has.

The evidential question

The records that carry the analytical weight are the current feeding regimen and its prescription history, growth or weight records over time, dietetic and speech and language therapy notes, community and specialist reports, and any account of the claimant's intake and tolerance from family or carers. Direct assessment of the claimant, where it is possible, is usually essential to a reliable nutritional prognosis.

What a dietitian should not address

Life expectancy, the care hours required to deliver feeding, swallow safety, and the medical management of complications such as aspiration are for the life expectancy, care, speech and language therapy and medical experts respectively. The dietetic report should specify nutritional needs and their likely trajectory, and leave the adjacent questions to the disciplines that own them.

Practical guidance for instructing solicitors

Records to obtain include: current and historical feeding prescriptions; growth charts or weight history; dietetic, speech and language therapy and gastroenterology notes; the home enteral feeding company's records; and the current care plan.

Key instruction questions: What are the claimant's current nutritional needs, and on what clinical basis? How are they likely to change, and when? What products, equipment and dietetic input will be required at each stage? Which needs fall to other experts, and has the division been agreed? On what basis, and with what range of uncertainty, are the needs stated? The legal treatment of private versus NHS provision is for counsel, not the expert.

Independent dietitian expert witness

I provide independent dietetic condition, prognosis and needs reports in catastrophic injury claims, for claimant and defendant instructions. If a schedule of loss is being built and nutrition is part of it, it is worth a conversation before the needs are fixed rather than after they have been challenged.

Rick Miller BSc., MSc., RD

Consultant Registered Dietitian

HCPC DT25651