Pauline Jones, Director of Nursing. Approve Adopt Receive for information. No Score. Carbon Reduction. Management Board

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1 Trust Board Part 1 Agenda Item 14. Date: 27 March 2013 Title of Report Legal Services Annual Report 2011/12 Purpose of the report and the key issues for consideration/decision The Board is asked to review the contents and note progress during 2011/2012. Prepared by: Name & Title Presented by: Nichola Lennon, Trust Solicitor Pauline Jones, Director of Nursing Action Required (please X) Strategic/Corporate Objective(s) supported by this paper Approve Adopt Receive for information N/A Is this on the Trust s risk register? No Yes If Yes, Score Which Standards apply to this report? CQC NHSLA BAF Objectives 12/13 WWL Wheel Strategic Priority Quality and management Learning from experience N/A Performance / Information Have all implications related to this report been considered? Finance Revenue & Capital National Policy/Legislation NHS Contract Human Resources Consultation/Communication Other: Equality & Diversity Patient Experience Governance & Risk Management Terms of Authorisation Human Rights Carbon Reduction Previous Meetings Please insert the date the paper was presented next to the relevant group Meeting Point Audit Committee Quality & Safety Committee Finance & Investment Committee Management Board IM&T Strategy Committee HR Committee NED Other N/A N/A N/A N/A N/A N/A N/A N/A N/A 1

2 Summary of Legal Services Annual Report 2011 / 2012 The report contains an analysis of information in respect of claims, litigation and HM Coroner s Inquests for the period 1 April 2011 to 31 March It also shows how the Legal Services Department (LSD) has developed over the last 12 months in respect of sharing lessons learned, and feeding information back into the Divisions. During the period 1 April 2011 to 31 March 2012: There has been a 25% increase in clinical negligence claims (from 78 in 2010/2011 to 100 in 2011/2012). The increase has primarily been within the Surgical Division. In terms of damages payments, the 3 highest settlement figures were within the Medical Division for quarters 1, 2 and 3 (totalling 540,000). The payments related to a delay in diagnosis, inadequate anti-coagulation and complications with antibiotic treatment. There has also been a slight increase in the number of employers and public liability claims against the Trust. Nearly 50% of settled employers claims related to slips / trips within the grounds of the RAEI. As expected, there has been a rise in the number of inquests being heard by HM Coroner (from 138 in 2010/2011 to 146 in 2011/2012). On the back of the Francis report, we anticipate this figure will continue to rise. Common themes arising from Coroner s inquests consist of inadequate record keeping, poor communication / handover between healthcare professionals, and incomplete risk assessments. The Trust received 1 Rule 43 letter from HM Coroner during the period 2011/2012. It related to the administration and availability of an antibiotic; however this has now been fully addressed by the Trust. In order to learn from the above, the LSD continues to participate in the weekly Executive Review Meetings; providing briefing reports for all settled medical negligence and employers liability claims, and where necessary, feedback from Coroner s inquests. The LSD also contributes to the quarterly SEC reports for each of the divisions, and the annual corporate SEC report highlighting where lessons can be learnt. There has also been an increase in the training provided by the Department in terms of inquests, and end of life care, which have become increasingly contentious topics within the media.

3 Legal Services Annual Report 2011/2012 Nichola Lennon 13 th March

4 CONTENTS Section number Heading Page No. 1 Executive Summary 4 2 Introduction 4 3 Clinical Negligence Claims Employers & Public Liability Claims HM Coroner s Inquests Ex-Gratia Payments Healthcare Advisory Work 11 8 Risk Management Issues 11 9 Future Strategy Recommendation 12 3

5 1 EXECUTIVE SUMMARY The Legal Services Annual Report 2011/2012 for Wrightington, Wigan & Leigh NHS Foundation Trust ( the Trust ) will be submitted to the March, 2012 Trust Board. The information contained within this report comprises the period from 1 April 2011 to 31 March 2012 in respect of claims, litigation and HM Coroner s Inquests. The report contains an analysis of the data during the 2011/2012 financial year, and where appropriate uses comparative data from previous years. The purpose of the Legal Services Annual Report is to feed this data back into the organisation to see what lessons can be learnt, and where appropriate changes can be made. This is to ensure that the Trust develops an ability to learn from claims, litigation and HM Coroners Inquests trends and themes with the aim of reducing both harm to patients and litigation costs. The report will also provide an update on the progress made by the Legal Services Department itself during the last financial year, along with proposals for change in the near future. 2 INTRODUCTION The Legal Services Department ( the Department ) is responsible for the management of: legal cases brought against the Trust in respect of clinical negligence claims; employers and public liability claims; ex-gratia requests for compensation; and HM Coroner s inquests. Although these are the main areas of work within the Department, this list is by no means exhaustive. The Head of Legal & Regulatory Services is also responsible for providing advice on a wide range of legal issues; including consent to treatment, disclosure, contractual matters and Freedom of Information requests. It is accepted that there will be times when the Department may have to instruct external solicitors to provide specialist advice on various healthcare / contractual issues. The Head of Legal & Regulatory Services is responsible for determining when external solicitors should be instructed to deal with any relevant matters to the organisation; at all times ensuring that legal costs are proportionate to the particular matter at hand. The graph below demonstrates the number of on-going / live cases the Department was dealing with as at 31 March Live Cases as at 31 March Clinical Negligence Employer's Liability Public Liability Ex-gratia Claims HM Coroner's Inquests Type of Cases 4

6 It is noted that the number of inquests held by HM Coroner has increased dramatically. This has not only resulted in an increase in workload for the Department, but has meant more time being spent by clinicians in Coroner s Court. (This will be dealt with in more detail later in the report). 3 CLINICAL NEGLIGENCE CLAIMS All clinical negligence claims brought against the Trust are managed in accordance with Trust policy and the terms and requirements of the NHSLA Clinical Negligence Scheme for Trusts (CNST). CNST is a contributory scheme which funds all damages and solicitors costs in cases which have been referred to the NHSLA. There is no requirement to refer cases to the NHSLA until a formal Letter of Claim has been received, or court proceedings have been issued by the claimant. The Department is responsible for handling claims prior to referral and for ensuring appropriate preliminary investigations are carried out. Once a referral to the NHSLA has been made, the Department is responsible for ensuring the case is appropriately managed and to assist in obtaining information relevant to the claim (such as clinician s statements, protocols, medical records etc). There has been a steady increase in the number of clinical negligence claims being brought against the Trust; demonstrated as follows: In 2008/ new clinical negligence claims were notified to the Trust; In 2009/2010 this figure rose to 73; and In 2010/ new clinical negligence claims were brought and During 2011/ new clinical negligence claims were notified to the Trust. The graph below shows a comparison of the numbers of claims brought against each division between 2009/2010 and 2011/2012. The overall picture is similar to that of the previous financial year; however there has been an increase in the number of claims. New Clinical Claims Medicine Clinical Support Services Surgery Musculoskeletal 2009/ / /

7 Summary of Clinical Negligence Cases 2011/2012 The information in the table below shows how many new clinical negligence cases (per quarter) where brought against the Trust during the period of 1 April 2011 and 31 March 2012, and what payments were made to both the claimant and their solicitors. Report Quarter New Closed Cases Resulting in Total Value Settled Total Value Claimant s Highest Payment Payment to Claims Solicitors Made the Claimant Costs Q1 April to June , , , Q2 July to , , ,000 September 2011 Q3 October to , , , December 2011 Q4 January to , ,900 88, March 2012 The cases which resulted in a payment being made to the claimant were within the following divisions. It is noted in bold what the highest payment per quarter related to. Surgical Division: Failure to detect bile leak resulting in bowel perforation Damage to bladder at C section operation Development of pressure sores resulting in amputation Retention of swab Unsatisfactory result of breast surgery Failure to diagnose and treat cancer in a timely manner Unsatisfactory result following mastoidectomy (this resulted in a payment of 88,526.85; the highest for Q4) Burn to other part of body following double mastectomy operation Alleged mismanagement of labour and contracting staphylococcus following c-section Feeding tube incorrectly inserted leading to death Failure to remove IVC Filter in a timely manner Alleged failure to treat and diagnose prostate cancer, resulting in cancer spreading Incorrect diagnosis of tumour During extraction of lower jaw molar, lingual nerve was severed Damage to bile duct during laparoscopic cholecystectomy Medicine Division: Alleged delay in diagnosis of septic arthritis necessitating replacement knee operation Death following encephalitis due to complications with antibiotic treatment (this resulted in a payment of 40,000; the highest for Q3) Failure to diagnose Type 3 Odontoid Fracture Failure to diagnose fractured cheekbone Alleged inadequate anti-coagulation following aortic valve replacement leading to stroke (this resulted in a payment of 250,000; the highest for Q1) Delay in treatment for suspected stroke Failure to diagnose tumour Delay in transfer to other hospital following chest pains Inappropriate treatment for eczema and delay in diagnose / treatment of severe viral illness (this resulted in a payment of 250,000; the highest for Q2) 6

8 Musculoskeletal Division: Unsupervised patient fell from bed and broke thigh bone Patient sustained a laceration on leg following hip replacement Delay in diagnosis of shattered lower limb Unsatisfactory knee replacement operation Death following fall and treatment for fracture to neck of femur from Pulmonary Oedema Failure to diagnose a dental abscess resulting in repeat surgery 4 EMPLOYERS & PUBLIC LIABILITY CLAIMS The Trust is a member of the NHSLA Liabilities to Third Parties Scheme (LTPS); a contributory scheme which provides financial assistance to Trusts in meeting damages and solicitors costs in respect of employers and public liability claims. Unlike CNST, all cases are referred to the NHSLA at the outset of the claim and the Trust itself is responsible for meeting the first 10,000 of each claim (including defence costs in cases successfully defended). a) Employers Liability Claims 23 new Employers Liability cases were notified to the Trust in 2008/2009; which rose to 25 new cases in 2009/2010. This figure dropped slightly to 22 new Employers Liability cases being brought in 2010/ new Employer s Liability cases were notified to the Trust in 2011/2012 New Employer's Liability Claims / / / / Financial Year 7

9 The table below shows how the number of Employers Liability cases (per quarter) against the Trust during the period of 1 April 2011 and 31 March 2012, and the total payment to the claimants and their solicitors. Report Quarter New Closed Cases Resulting in Payment to the Claimant Q1 April to June 2011 Q2 July to September 2011 Q3 October to December 2011 Q4 January to March 2012 Total Value Settled Claims Total Value Claimant s Solicitors Costs Total Value of Payment made by the Trust , ,590 28, ,650 64,875 77, ,263 28, , ,000 14,550 19,800 The majority of cases where payment was made related to the following: Sharps injuries (5%) Slips/Trips/Falls (47%) Exposure to contamination (5%) Injured lifting/assisting patient (11%) Hurt by object/equipment (32%) Where cases have been referred to the NHSLA and external solicitors appointed, a risk management report is provided to the Trust when a payment has been made. The purpose of such reports is to feed back what lessons can be learnt in order to prevent similar claims from occurring in the future. These lessons are fed back into the appropriate areas of the organisation. b) Public Liability Claims In 2008/ new cases were notified to the Trust. In 2009/2010 this figure dropped to 4 new cases and in 2010/2011 another 4 new cases were notified to the Department. In 2011/ new cases were notified to the Trust. Report Quarter New Settled Total Value Settled Claims Total Value Claimant s Solicitors Costs Q1 April to June ,900 17,500 Q2 July to September 2011 Q3 October to December 2011 Q4 January to March ,316 7, N/A N/A 3 1 4,000 7,650 8

10 The above table shows what payments have been made by the Trust in relation to public liability claims. The cases which have resulted in a payment relate to: Trapped in lift Slip on wet floor/debris Detention and assault 5 HM CORONER S INQUESTS The Legal Services Department has seen a steady rise in the number of inquests being held by HM Coroner each month. HM Coroner will contact the Department in respect of inquests where the death of the patient occurred in the Trust or where the patient had been treated by the Trust prior to death. Upon request by HM Coroner, the Department is responsible for obtaining statements from the treating clinicians and for these to be submitted to the Coroner s office. HM Coroner will then decide if that clinician is required to be present at the inquest itself, or if their statement can be submitted as documentary evidence under Rule 37 of the Coroner s Rules. The Head of Legal & Regulatory Services will assist the clinicians on the preparation of those statements and attendance at inquest if necessary. However where it is felt that there may be potential issues which could affect the Trust and / or attract adverse publicity, the Head of Legal & Regulatory Services may instruct external solicitors for specialist advice. Below is a breakdown of the number of inquests received by the Trust during the period of 1 April 2011 to 31 March 2012; along with a comparison of previous years. The Trust was notified of 127 new inquests in 2009/2010; this increased to 138 in 2010/2011. The Trust was notified of 146 inquests in 2011/2012. New Inquests Received / / /2012 Year This number is likely to increase again for the next financial year. According to the Ministry of Justice s Coroners Statistics 2010: England and Wales, some 230,600 deaths were reported to coroners in 2010, a rise of 700 (0.3 per cent) from the 2009 figure. However the proportion of all registered deaths reported to coroners remained at an estimated 47 per cent in 2010, the same as in This percentage has been relatively consistent over for the last few years. 9

11 Below is a table showing the number of inquests that were held each quarter during the 2011/2012 financial year. Report Quarter New Inquests Notified Inquests Held Inquests Attended Cases Referred onto the Police Q1 April to June Q2 July to September Q3 October to December Q4 January to March There are a number of common themes which are regularly addressed by HM Coroner. These include the following: Nursing intervention not recorded in the case notes; Standard of medical record keeping; Falls risk assessments not carried out following fall; Poor communication with relatives; and Difficulty in identifying clinicians prescribing drugs / making entries in the medical notes. From a legal perspective, record keeping is a vital means of proving what treatment was / wasn t provided to a patient. HM Coroner takes the view that if something isn t recorded; it didn t happen. It is therefore crucial that each division is regularly reminded of the importance of good record keeping and the Head of Legal & Regulatory Services provides regular lectures on this to student doctors and nurses. 6 EX-GRATIA PAYMENTS In 2011/2012 the Department received 30 ex-gratia payment requests which consisted of the following: New Ex-gratia Claims Claiming cost of Voucher 1 Patient Experience 1 Loss of glasses 5 Loss/Damage of dentures 10 Loss of Jewellery 1 Damage to Clothes 1 Refund of fees/expenses 5 Loss of other property Out of the 30 requests payment was made on 15 cases (50%) totalling 3,

12 In 2009/2010 there were 38 requests for ex-gratia payments and 48% resulted in payment being made to the claimant. The total ex-gratia payments made in 2009/2010 amounted to 1, The majority of requests relate to loss of glasses / dentures / personal property which have been misplaced / thrown away by hospital staff. It is essential that disclaimers are signed by patients upon arrival to the ward acknowledging full responsibility for their own belongings. Other requests relate to patients being unhappy with appointments. For example they attended the hospital to find the consultant was unavailable and being given appointments unnecessarily. Ward staff are regularly reminded that they should ensure disclaimers are signed upon arrival of the patient. The property book should be completed and all staff should generally take more care with patient s possessions. If these actions are taken the Trust should see a decline in the number of exgratia claims and a reduction in monies paid out. 7 HEALTHCARE ADVISORY WORK The Head of Legal & Regulatory Services also provides advice on a wide range of legal issues and topics, including consent to treatment, disclosure of records, contract law and Freedom of Information Requests. Lectures are also given on a regular basis to medical and nursing staff on the issues of consent to treatment, litigation, good record keeping and patient confidentiality. The majority of the time healthcare advisory work will be kept in-house in order to ensure that legal costs are kept to a minimum. However at times it may be necessary to refer work to external solicitors who can provide advice on specialist issues. It is the role of the Head of Legal & Regulatory Services to decide whether this expenditure is proportional and will be a long term benefit to the organisation. 8 RISK MANAGEMENT ISSUES In addition to ensuring that cases are handled in accordance with Trust policy and procedure, particular attention is paid to identifying risk management issues. It is crucial that the Trust learns from the above claims and HM Coroner s inquests and feeds this information back to the relevant areas with the aim of reducing both harm to patients and litigation costs. During the period of 1 April 2011 to 31 March 2012 the 3 key risk management issues were identified as follows: Record keeping as referred to above, this is raised frequently by HM Coroner and can be detrimental to the outcome of an inquest if the appropriate records are not completed thoroughly. Action to be considered: Regular lectures on the importance of good record keeping given by the Legal Services Department. Heads of Divisions also need to filter this message down to both medical and nursing staff. Communication with relatives again it has been raised by HM Coroner that there is a lack of communication with families of patients. Action to be considered: If families are kept informed they are less likely to complain and / or bring a claim against the Trust. Internal investigations should be shared with the families, with an opportunity to discuss concerns with the relevant consultants / matrons. Confidentiality issues unauthorised use of patient details. Action to be considered: Regular lectures should also be provided on the issues of confidentiality and data protection. Members of Trust staff need to be made aware that the Head of Legal & Regulatory Services is on hand to address any concerns which may arise. 11

13 N.B. Please note that weekly Executive Review meetings take place in which risk management issues are identified and acted on appropriately. 9 FUTURE STRATEGY There is clear evidence of improved performance within the Legal Services Department. There is now a greater emphasis on sharing lessons learned and feeding this back into the divisions. The following actions have been implemented within the last 12 months in order to progress and sustain this development: Weekly Executive Review meetings continue to take place during which key HM Coroner s Inquests and litigation claims are discussed. Action points are made at each meeting (as and when required) and implemented by the Department. Briefing reports are prepared for all settled medical negligence and employer s liability claims. These provide a synopsis of the incident, the reasons for settlement and any lessons to be learnt. These are distributed and discussed at the weekly Executive Review meeting. The Legal Services Department now contributes to the quarterly SEC reports for each of the divisions. Data is provided to the divisions regarding litigation claims, coroner s inquests and common themes / trends. The Department also contributes annually to the corporate SEC report where lessons to be learnt can be identified. In addition, and when requested, a representative from the Department will attend the divisional SEC meetings to discuss the findings within the report, and to answer any questions on specific cases. There has been increased training provided by the Department. Due to an increase in the number of contentious inquests the Department has arranged for external solicitors to provide inquest / coroner s court training to a variety of staff within the Trust. Arrangements are also in place for End of Life training which is also becoming an increasing contentious topic in the media. Datix systems have been updated within the Department and training has been provided by the Patient Safety Team to promote better understanding of the process of investigation and lesson learning within the Trust. A monthly Feedback newsletter incorporating any emerging trends identified Lessons Learned from Claims, Litigation and Inquests is distributed electronically to divisional and directorate leads for presentation and distribution across their respective divisions / directorates. Regular presentations regarding the importance of good record keeping and patient confidentiality. 10 RECOMMENDATION The Trust Board is requested to note the contents of this report for information. 12

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