Claims Management Policy

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1 Claims Management Policy Reference No: CIG001 Version: 2 Ratified by: NHS Lincolnshire Trust Board Date ratified: October 2008 Name of originator/author: Jane Christmas Name of responsible committee/individual: Risk and Governance Committee Date issued: September 2008 Review date: January 2013 Target audience: All Organisation staff Distributed via: Postmaster Website

2 Version Section/Para/ Annex NHS Lincolnshire Version Control Sheet Claims Management Policy Version/Description of Amendments Date Author/Amended by 1 September 2008 J Christmas 2 Throughout document Update January 2010 T Wilburn Page 2 of 33

3 NHS Lincolnshire Policy Statement Claims Management Policy Background In April 2002, the NHS Litigation Authority [NHSLA] took over financial responsibility and case management responsibility for all clinical negligence claims. Existing excesses were abolished and Organisations must now notify the NHSLA of any new claim for compensation arising from allegations of clinical negligence. Claims for personal injuries [not as a result of treatment] from employees, patients and members of the public, and property damage, are managed under the NHSLA s Liabilities to Third Parties Scheme and the Property Expenses Scheme respectively. Both of these schemes are incorporated into the Risk Pooling Scheme for Organisations [RPST]. Statement There are two main objectives of this policy: The first is to describe the legal arrangements by which NHS Lincolnshire will manage clinical, non clinical and property claims. The second objective is to provide guidance on the action staff should take upon receipt of a potential or formal claim against the Organisation. NHS Lincolnshire is committed to the effective and timely investigation and response to those claims made against the Organisation and to support staff involved. Responsibilities All staff members must report all untoward incidents as they may result in a claim against the Organisation. The Organisation will ensure that all appropriate staff are informed of any clinical negligence and personal injury claims. The views and opinions of staff will be sought before instructing a settlement or contesting a claim. Staff will be offered support. Training NHS Lincolnshire employed staff will be provided with awareness raising in relation to claims as part of the risk management training session included within the Organisation Induction Programme. This training will be supplemented for both clinical and non-clinical staff with inclusion of a claims management update within the risk management training session delivered as part of the annual mandatory training update included within the mandatory training programme. Dissemination The policy will be disseminated to all staff via postmaster and available on the NHS Lincolnshire website. Resource Implication The National Health Service Litigation Authority has responsibility for the financial management of all clinical negligence claims. It also has responsibility for the financial management of all reportable Liability to Third Party Schemes (LTPS) and Property Expense Scheme (PES). Page 3 of 33

4 Policy on Handling of Claims Contents Page 1. Introduction 5 2. Definitions of Terms 5 3. Background 6 4. Role of the NHSLA 7 5. Roles & Responsibilities 8 6. Delegated Limits 9 7. CNST Reporting Guidelines 9 8. Procedure for Handling Clinical Negligence Claims 9 9. Employment Law Pre Action Protocol Letter of Claim 11 12, Request for Disclosure of Records Obtaining Health Records Process Claims Documentation Dealing with Correspondence Letter of Response Role of the claims handler The use of legal advisors Information on claims Support for staff Training Lessons Learned Alternative dispute resolution Nuisance claims Reporting arrangements Matters to report to the NHSLA Risk Management Monitoring & Evaluation Triggers to invoke the claims policy Inquests Personal injury claims from employees & members of the public Property Damage Investigation of Claims Instructing the NHSLA Related Policies 24 Appendix 1 Appendix 2 Appendix 3 Appendix 4 Appendix 5 The NHSLA A summary An Overview of the Litigation Process flow chart Liabilities to Third Parties Scheme Incident report Form Property Expenses Scheme Incident report Form CNST Claim Reporting Form Page 4 of 33

5 1. Introduction The Clinical Negligence Scheme for Trusts [CNST] defines a claim as: A demand for compensation made following an adverse incident resulting in damage to property and/or personal injury. There are two main objectives of this policy: The first is to describe the legal arrangements by which NHS Lincolnshire [Organisation] will manage clinical, non clinical and property claims. The second objective is to provide guidance on the action staff should take upon receipt of a potential or formal claim against the Organisation. The policy sets out the Organisation s commitment to effective and timely investigation and response to any claim made against the Organisation and to support staff involved. The policy and procedures apply to the management of the following types of claim: Clinical Negligence - covered by the NHS Litigation Authority (NHSLA) Clinical Negligence Scheme for Trusts (CNST) adopted into NHSLA Risk Management Standards for Organisations Employer Liability - covered by the NHSLA Risk Pooling Scheme for Organisations (RPST) Liability to Third Parties Scheme (LTPS) Public Liability - loss or damage to property or injury to patient or member of the public not as a result of treatment Organisation Property - Claims in respect of loss or damage to property - covered by the NHSLA RPST Property Expenses Scheme (PES). This may be in relation to damage to buildings, equipment or loss or theft of property of the Organisation. NHS Lincolnshire (comprising of the Commissioning Arm and Lincolnshire Community Health Services) will ensure that staff understand the process for managing claims, including their responsibilities, and that the Organisation complies with the requirements of the risk management standards of the Clinical Negligence Scheme for Trusts [CNST] and Risk Pooling Scheme for Trusts [RPST]. It is also imperative that the Organisation complies with the requirements of the pre-action protocols for personal injuries and the resolution of clinical and non clinical disputes, so avoiding cost penalties. Claims monitoring is a fundamental tool of risk management. Information gathered on claims made against the organisation managed by the Commissioning Arm of the Organisation are reported within the Patient Safety and Safeguarding Report Learning from Experience to the Trust Board on a quarterly basis. In addition, a more detailed report on these claims is presented to the Organisation s Risk and Governance Management Committee to ensure that the Organisation recognises and applies lessons learnt from claims/risk management experience into broader organisation learning. Claims managed by Lincolnshire Community Health Services are reported and monitored through the Clinical Governance and Risk Committee and Lincolnshire Community Health Service Strategic Board. It recognises the need to ensure appropriate handling of complaints when they occur, and the importance of taking action to minimise such claims through risk management. Page 5 of 33

6 2. Definition of Terms 2.1 Claimant Any patient or their representative, member of the public, or employee who instructs solicitors to act on their behalf to pursue a claim against the Organisation, or who enters legal proceedings against the Organisation or who pursues compensation. 2.2 Claim Where the context allows, any action against the Organisation initiated by a claimant or any claim lodged by the Organisation under the terms of the Property Expenses Scheme. 2.3 Clinical Negligence Scheme for Trusts (CNST) The scheme, operated by the NHSLA, of which the Organisation is a member, and which assumes liabilities for the appointment of solicitors and the settlement of all claims, in full, which are made against the Organisation. The Organisation will be assessed by the NHSLA in relation to their risk management standards and this will determine a level of discount on the premiums. 2.4 Liabilities to Third Parties Scheme (LTPS) The scheme operated by the NHSLA, of which the Organisation is a member, which assumes liability for the appointment of solicitors and (subject to member excess) the settlement of all claims which are made against the Organisation. 2.5 Property Expenses Scheme (PES) The scheme operated by the NHSLA, of which the Organisation is a member, which assumes liability for the management and settlement of all claims made by the Organisation in respect of premises and property. 2.6 Services to whom this policy applies: This policy applies to services directly provided by the Organisation to its own residents by staff employed within NHS Lincolnshire and Lincolnshire Community Health Services. Claims against independent practitioners should be dealt with by their own liability cover and medical insurance. Any independent practitioner who receives a letter of claim or request for disclosure of records should seek advice immediately from their medical defence union. 3. Background A range of national initiatives has been introduced since 1995, advising Organisation to have a proactive approach to claims management. These initiatives include the NHSLA Risk Management Standard for the Organisations, the Care Quality Commission Standards for Better Health and the Woolf Reforms of the civil justice system [the introduction of pre-action protocols for personal injuries and resolution of clinical and disputes with changes to the court rules/ procedure] and the Complaints Regulations In respect of clinical negligence claims, CNST, which is a pooling arrangement, was introduced as a voluntary scheme to limit the liability of member Organisations. Page 6 of 33

7 In April 2002, the NHS Litigation Authority [NHSLA] took over financial responsibility and case management responsibility for all clinical negligence claims. Existing excesses were abolished and Organisations must now notify the NHSLA of any new claim for compensation arising from allegations of clinical negligence. Claims for personal injuries [not as a result of treatment] from employees, patients and members of the public, and property damage, are managed under the NHSLA s Liabilities to Third Parties Scheme and the Property Expenses Scheme respectively. Both of these schemes are incorporated into the Risk Pooling Scheme for Organisations [RPST]. In June 2003, a consultation paper was published, setting out proposals for reforming the approach to clinical negligence in the NHS. Making Amends [DOH 2003] aims to ensure that the emphasis of the NHS is directed at preventing harm, reducing risks and enhancing patient safety so that the level of medical error is reduced. In 2005 the NHS Redress: Improving the Response to Patients Bill was introduced. The NHS Redress Bill builds on a commitment to reform the current clinical negligence system by providing a more proactive approach to clinical negligence with the onus no longer on the patient to initiate a claim. All scheme members will be expected to review adverse incidents and trigger reporting, where appropriate. This policy is cognisant of those reforms and will be reviewed in accordance with future legislation as it becomes available. 4. Role of the National Health Service Litigation Authority [NHSLA] The principal task of the NHSLA is to administer schemes set up under Section 21 of the National Health Service and Community Care Act This enables the Secretary of State to set up one or more schemes to help NHS bodies pool the costs of any loss of or damage to property and liabilities to third parties for loss, damage or injury arising out from the carrying out of their functions. There are currently five schemes: i. A scheme covering liabilities for alleged clinical negligence 1 where the original incident occurred on or after 1 st April 1995 (the Clinical Negligence Scheme for Trusts or CNST). ii. A scheme covering liabilities for clinical negligence incidents that occurred before that date (the Existing Liabilities Scheme or ELS). iii. A scheme covering the outstanding liabilities for clinical negligence in respect of the former regional health authorities. iv. A scheme relating to any liability to any third party where the original incident occurred on or after 1 April 1999 (the Liability to Third Party Schemes or LTPS). v. A scheme relating to any expenses incurred from any loss or damage to property where the original loss occurred on or after 1 April 1999 (the Property Expenses Scheme or PES). 1 A clinical negligence liability is defined for the purpose of this document as any liability in tort owed to a third party in respect of or consequent upon personal injury or loss arising out of or in connection with any breach of a duty of care owed by that body to any person in connection with the diagnosis of any illness, or the care or treatment of any patient, in consequence of any act or omission to act on the part of a person employed or engaged by [an NHS Organisation ] in connection with any relevant function of that [body] See regulation (4) of the NHS (Clinical Negligence Scheme) Regulations SI. 1996/251 Page 7 of 33

8 For the purpose of this document, the five schemes are together referred to as the Schemes. Appendix 1 provides further detail on the role of the NHSLA 5. Roles and Responsibilities 5.1 Chief Executive The Chief Executive has overall accountability for the management of all claims. 5.2 Director of Finance & Contracting The Director of Finance & Contracting will be responsible for monitoring and authorising payment of clinical negligence claims in consultation with the NHSLA. The final authorisation of a payment on a claims-related matter, including an admission of liability, will rest with either the Chief Executive and / or the Director of Finance & Contracting of NHS Lincolnshire and the Managing Director of Lincolnshire Community Health Services. 5.3 Nominated Director Director of Quality and Involvement The delegated responsibility for the management of Commissioning Arm Claims rests with a nominated Director, the Director of Quality and Involvement. The Director of Quality and Involvement will ensure that claims are properly managed and that the risk management process takes proper account of the lessons to be learned from claims. The Director of Quality and Involvement has responsibility to ensure the management, coordination and handling of claims is undertaken this will include: Ensuring that the Chief Executive and the Director of Finance & Contracting receive appropriate information in respect of claims Ensure appropriate liaison with third parties such as the NHSLA, solicitors and claimants Ensure that a preliminary analysis is undertaken in accordance with the requirements of the pre-action protocols Investigation of claims and arranging for root cause analysis to be undertaken in those cases where this is thought appropriate. Presenting quarterly claims reports to the Governance and Risk Management Committee. Ensure that all relevant documents are disclosed and sign a Disclosure Statement setting out the extent of the search that has been undertaken and certifying that the obligation to provide disclosure is understood by the signatory and that the signatory has carried out that duty to the best of their ability. To reconcile quarterly summaries from the NHSLA with claims submitted in consultation with members of the Directorate of Finance & Contracting. The conduct and control of all claims and claims documentation 5.4 Head of Clinical risk and compliance The Head of Clinical Risk and Compliance is responsible for overseeing the management of Commissioning Arm claims. Day to day management of these claims is further delegated to the Patient Safety Manager (claims manger), working within the Clinical Risk Management team. The description of the Claims Manager is described in Section 18. Page 8 of 33

9 5.5 Lincolnshire Community Health Service Lincolnshire Community Health Service is responsible for the management of clinical negligence claims and non-clinical claims in relation to the services they directly provide. Overall, responsibility for the management of Lincolnshire Community Health Service clinical claims rests with the Managing Director of Lincolnshire Community Health Services. The delegated responsibility rests with the Chief Operating Officer. The Chief Operating Officer will ensure that claims are properly managed and that the risk management process takes proper account of the lessons to be learnt from claims. The Head of Risk and Quality is responsible for overseeing the management of claims. However, day to day claims management is delegated to the Complaints and Claims Manager (claims manger), working within the Risk and Quality Department of Lincolnshire Community Health Services. The description of the Claims Manager is described in Section All Staff All staff members employed by NHS Lincolnshire must report all untoward incidents as they may result in a claim against the Organisation. The Organisation will ensure that all appropriate staff are informed of any clinical negligence and personal injury claims. The views and opinions of staff will be sought before instructing a settlement or contesting a claim. Staff will be offered support, this is identified further in Section Delegated Limits The NHSLA has responsibility for the financial management of all clinical negligence claims. It also has responsibility for the financial management of all reportable LTPS and PES claims above the designated excess levels. All payments in settlement of personal injury claims will be entered in summary form in the register of losses and special payments by the NHSLA. Any contributions from the Organisation (LTPS or PES) will be noted in the register. 7. CNST Reporting Guidelines Under the CNST Reporting Guidelines Fifth Edition, when a significant litigation risk has been established and a realistic valuation of a possible claim has been made, the matter becomes reportable to the NHSLA. One of six possible situations may arise: Incidents reported, graded red/serious and investigated under the healthcare governance arrangements. Those revealing a possible breach of duty leading to a potential large value claim (i.e. damages of over 250,000) must be reported as soon as possible, usually before a claim is made. Incidents which have the potential to become a group action involving a number of patients (e.g. there has been a failure of a screening service such as cytoscreening or breast screening). Claims arising from alleged negligence or serious professional misconduct of a clinician or team which has affected a cohort of patients. ( serial offenders ). Page 9 of 33

10 Claims arising from a complaints investigation where the response, on the facts, indicates that an admission of liability has been implied. Requests for disclosure of records where the preliminary analysis indicates the possibility of a claim with a significant litigation risk, regardless of value. Letters of claim as the first indication of any action. Every effort will be made to ensure that potential claims are brought to a satisfactory conclusion without the necessity of a court hearing, by means of discussion, negotiation and, if applicable, mediation. 8. Procedure for Handling Clinical Negligence Claims NHS Lincolnshire recognises the importance of ensuring: appropriate and cost effective management of all claims; compliance with legal and NHS rules and guidelines in the pursuit of claims, in particular, by ensuring that litigation is not pursued unreasonably; lessons are learned from the causes of claims. 9. Employment Law Claims for unfair dismissal (ET1) and all alleged breaches of Employment Law including discrimination should be passed to and dealt with by the Director of Workforce and Organisational Development in accordance with the procedures outlined. 10. Pre-Action Protocol This aims to: Ensure more pre-action contact between parties; Enable improved and earlier exchange of information; Improve pre-action investigation on both sides; Place the parties in a position where they may be better able to settle cases fairly and early without litigation; Enable proceedings to run efficiently and to the court s timetable if litigation becomes necessary. The Organisation recognises, and will at all times adhere to, the pre-action protocols for the resolution of clinical disputes and personal injury claims, in the interests of: Encouraging a climate of openness when something has gone wrong with a patient s treatment or the patient is dissatisfied with that treatment and / or the outcome. Encouraging the adoption of a constructive approach to complaints and claims, and accepting that concerned patients are entitled to an explanation, an apology if warranted, and appropriate redress in the event of negligence. Building on and increasing the benefits of an early but well-informed settlement that genuinely satisfies both parties to the dispute. Page 10 of 33

11 11. Letter of Claim A letter requesting disclosure of the case notes [a disclosure request] is likely to be the first indication of any proposed claim. Under the pre-action protocol, Claimants [following completion of their initial enquiries, including an analysis of the disclosed case notes] are required to send a comprehensive letter of claim setting out the full details of the proposed claim. The protocol requires the letter of claim to be acknowledged within 14 days and a full letter of response to be sent to the claimant within three months. The NHSLA will arrange for a panel firm of solicitors to be appointed and they will arrange for this letter of response to be sent All legal proceedings, such as the letter of claim, must be reported to the NHSLA within 24hrs. The NHSLA claim reporting form can be found in Appendix 5. Also under the pre-action protocol, Claimants should not issue proceedings until 3 months from the date of the letter of claim, unless there is a limitation issue and / or the patient s position needs to be protected by early issue. The letter of claim should contain a clear summary of the facts on which the claim is based, including the alleged adverse outcome and the main allegations of negligence. It should describe the patient s injuries, the present condition and prognosis, and the estimated financial loss incurred by claimants. In more complex cases, a chronology of the relevant events should be provided. Sufficient information should be given to enable the Organisation to commence investigations if it has not already done so, and for the NHSLA to put an initial valuation on the claim. All requests for disclosure of medical records must be processed within 40 days. This includes providing claimants solicitors with a copy of the records. A preliminary analysis should be sent to the NHSLA as soon as possible, outlining the details of the case, the progress of any investigation and actions taken. 12. Requests for Disclosure of Records The first indication that a claim against the Organisation is being contemplated is often a letter from the patient or their solicitors requesting access to their records. The relevant law, as it relates to England and Wales, is primarily contained in the Access to Medical Records Act 1988, The Access to Health Records Act 1990, the Data Protection Act 1998 and regulations made under the provisions of this Act. Under the Data Protection Act, any patient making a written request for disclosure of their medical records is entitled to receive a copy of those records subject to certain exemptions. Requests for access to a deceased s records are made under the Health Records Act Under this Act, a patient s personal representative and any person who may have a claim arising out of the patient s death, has a right of access, again subject to certain exemptions. Exemptions to both 1998 Data Protection Act and the Access to Records Act 1990 are as follows: It would be likely to cause serious harm to the physical or mental health of the patient or any other person. The record contains information relating to, and identifying, another person, unless that person has consented to the release of information. Page 11 of 33

12 In the case of the Access to Health Records Act: The records include a note, made at the patient s request, that access was not to be given on such an application. Where access would disclose information provided by the patient in the expectation that it would not be disclosed to the applicant. Where access would disclose information resulting from any examination or investigation to which the patient consented in the expectation that the information would not be disclosed. Where, in the case of a patient s death, access by the patient s personal representative [or a person who may have a claim arising out of the death] would disclose information not relevant to a claim. Records should be disclosed within 21 days if requested under the Access to Health Records Act 1990, or within 40 days if part or all of the record has been added to in the 40 days preceding the request. If the records are requested under the Data Protection Act 1998 [which applies to living patients], they should be disclosed within 40 days. Requests for records of deceased patients are made under the Access to Health Records Act Under this Act, a patient s personal representative, or any person who may have a claim arising out of the patient s death, has a right of access to the deceased patient s medical records, again subject to exemptions. The disclosure of records will be managed by the Information Governance Department. Where staff are uncertain about disclosing records or parts of records, they should seek advice from their line manager, the Information Governance Department and or the Organisation Caldicott Guardian. 13. Obtaining Health Records The requirements of the Data Protection Act 1998, the Access to Health Records Act 1990 and the Pre-Action Protocol for the resolution of clinical disputes must be met. The Organisation must provide copy records within 40 days of this request 2. In the rare circumstances that the Organisation is unable to comply within 40 days, the problem should be explained to the complainant promptly, and details given of what is being done to resolve it. If the records are not provided to the patient within 40 days, the patient can seek a court order for pre-action disclosure. This will have adverse cost consequences for the Organisation. Checks must be undertaken to ensure that the patient or advisor has provided sufficient initial information. If necessary, more information should be requested to enable a full and accurate investigation and collection of facts. The patient, or his representative, should be asked to be as specific as possible. It is reasonable to seek clarification as to which records are required, and if the applicant is content to dispense with the copying of records which do not relate or appear to relate to the matter under investigation. 2 The current administration fee for copy records is 10, plus the costs of photocopying at 25p per side, and the costs of first-class recorded delivery postage, to a total maximum of Page 12 of 33

13 Once the nature of the request is clear, the Organisation can consider suggesting that alternative means of resolving the issues might be appropriate, such as the use of the complaint procedure. The pre-action protocol for the resolution for clinical disputes states that 'sufficient information' should provided to enable the Organisation to determine which records are relevant, and to identify whether further investigation is necessary. The Organisation s obligation to disclose under the Data Protection Act 1998 / The Access to Health Records Act 1990 does not prevent requests by the Organisation for further details if insufficient information has been supplied in the application. Arrangements should be made as soon as possible to collect, retain, paginate and index all relevant records. A copy will need to be sent to the NHSLA, and at least one copy retained in the Organisation. This should be done with the least disruption to the clinical area if the records are still in use. The originals should be retained until the outcome of the litigation. 14. Process Incidents, Adverse Incidents and Complaints are risk assessed on receipt by NHS Lincolnshire s Risk Management Team(s), Any incident or complaint which is assessed to contain a potential risk of litigation should be identified to the Claims Manager immediately for onward notification to the Director of Quality and Involvement. If the incident/complaint is of a serious nature, the Claims Manager in conjunction with the Director of Quality and Involvement will make a decision in relation to onward reporting to the NHSLA, even prior to receipt of a letter of claim. 15. Claims Documentation All potential claims and claims will be dealt with as follows: If there is a potential claim irrespective of the source the Organisation will: Open a potential claim/claim file Log as a potential claim/claim on the risk management system Each claim will be placed in a separate file clearly labelled with name of claimant. These folders will be kept in a locked cabinet. File notes to be made of all conversations or discussions about the claim. Potential clinical claim will start investigation and prepare report for CNST (Clinical Negligence Scheme for Organisations) see later for detailed requirements Potential public liability or employer liability claim will investigate in accordance with the Pre Action Protocols. 16. Dealing with Correspondence All incoming correspondence should be date stamped on the day that it arrives All incoming correspondence should be placed on file in chronological order A copy of all outgoing post should be retained on file in chronological order A preliminary analysis for the NHSLA should be undertaken in every case where records are requested and a claim is intimated. This analysis is a brief examination of the immediately available evidence, which needs to be tested against the legal criteria for breach of duty and causation to establish if there is a realistic prospect of a claim. The preliminary analysis should be structured and contain the following headings; synopsis and chronology; care management problems; breach of duty; causation; quantum; claimant s funding; risk Page 13 of 33

14 management implications and action plan. This report should be submitted to the NHSLA within 40 days of receipt of the request for the disclosure of records. Advice on the structure and content of this report can be found in the CNST guidance document. The NHSLA will appoint solicitors to act on behalf of the Organisation. The Organisation will be informed of their contact details and will be copied in to all correspondence and further information that may be requested from the solicitors. The final report from the solicitors will be received by the Organisation; it will detail the solicitors' review of the case and advise on the proposed outcome. If a Particulars of Claim form arrives at the Organisation, it must be sent immediately to the appropriate Claims Manager. This document is the formal claim in the proceedings and court rules require the defendant [the Organisation] to serve a defence in response. The defence must be completed within 14 days, be lodged at court and served upon the claimant. The Claims Manager or responsible staff member should fax the Particulars of Claim document directly to the NHSLA, with a subsequent telephone call to verify its receipt. If a Claimant s Part 36 offer is received - and this may occur at any time - it must be notified immediately to the NHSLA by telephone and followed up by fax. The Organisation should not give indication to the claimant's solicitors that any such offer is valid. See NHSLA guidelines for further details. 17. Letter of Response The NHSLA will investigate the claim and will, within 3 months of the acknowledgement of claim, provide a reasoned answer to it in the form of a letter of response. If liability is denied, reasons must be given for the denial, and documents must be enclosed which are material to the issues in dispute and whose disclosure could be ordered by the court during proceedings. The letter of response will be drafted by the NHSLA, and admissions made in a letter of response are binding for all claims. 18. Role of the Claims Handler 18.1 Co-ordination The Claims Manager is responsible for the operational management of all claims and legal advice, ensuring that there is central co-ordination and a consistent approach. The experience of front-line and specialist staff within the Organisation will be utilised in areas such as data protection, child protection and clinical concerns. The Nominated Director will request legal advice where appropriate Early Warning and Investigation A requirement of the Incident Policy is that all staff must report incidents as soon as possible after they occur. If a potential claim is identified, the Claims Manager will: collect investigations undertaken internally, including, where relevant, the complaint file, incident reports and, where undertaken, Local Management Inquiry and Board Level Inquiry reports; request an appropriate internal clinical opinion, identify all key staff, request preliminary statements and alert the NHSLA. Page 14 of 33

15 The Claims Manager will also keep staff informed about the progress of a case and update them on developments. A lead investigator from the Clinical Risk Management team will also be identified for each case. In the event of disagreement about proposed admissions of liability in clinical claims, or if there are issues of sensitivity or anticipated repercussions, it is the responsibility of the Claims Manager to bring this to the attention of the Director of Quality and Involvement, the Chief Executive and other Directors of the Organisation The Claims Manager will also: Be responsible for ensuring that the Pre-Action Protocol for the Resolution of Clinical Disputes is followed, including responding to letters of claim and forwarding them to the NHSLA within the given time scales. Ensure the disclosure of medical records, according to the given time scales in the Data Protection Act 1998 or the Access to Health Records Act 1990 as applicable. Identify the lead investigator. Receive, acknowledge and process all new potential claims that arise against the Organisation. Identify and arrange for the preservation of relevant records and other items, such as equipment involved in incidents. Ensure that initial investigations have been made and a preliminary analysis has been done. Report potential claims to the NHSLA in accordance with its reporting guidelines. Establish and, as necessary, maintain contact with relevant staff and former staff. Obtain in-house expert and clinical advice as necessary. Support staff involved in the litigation process. Ensure that risk management issues arising are shared as necessary with the Organisation Board, the Audit Committee and the Risk Management and Governance Committee, and that such issues are entered on the organisational risk register. Ensure that lessons learned in the process of claims management are used for risk management purposes in the context of future service provision. 19 The use of legal advisors. In all reportable claims, defence solicitors will be instructed directly by the NHSLA and not by the Organisation. 20 Information on Claims. A database of all claims relating to the Organisation will be maintained, including information about the nature of each claim, financial data and other statistics. This database will assist in the provision of relevant and timely information as required either by the Organisation Board, Risk and Governance Management Committee or the NHSLA. Due regard will be paid to the confidentiality of data relating to individuals. Data will be processed in compliance with the Data Protection Act Support for Staff NHS Lincolnshire recognises the importance and value of supporting staff throughout the process of a claim. There are a variety of ways in which any member of staff can receive support: Page 15 of 33

16 The Claims Manager will keep staff informed of the progress of the claim, and offer support and guidance throughout the process. Service managers will be made aware of claims in their area, and will offer day-to-day support. Staff are encouraged to contact their professional representative as early as possible in the claims process. The Human Resources department will offer guidance and support on a confidential basis. Occupational Health services can be offered to staff if required. A counselling service is available. The support for staff does not end at the cessation of the claim: the Claims Manager will liaise with the service manager and clinical risk management team to assess the continued support required. An action plan will then be developed to include ongoing support mechanisms for staff involved. 22. Training NHS Lincolnshire employed staff will be provided with awareness raising in relation to claims as part of the risk management training session included within the Organisation Induction Programme. This training will be supplemented for both clinical and non-clinical staff with inclusion of a claims management update within the risk management training session delivered as part of the annual mandatory training update included within the mandatory training programme. A programme of Root Cause Analysis Training will be established for Managers to enable them to fulfil their investigatory responsibilities. Managers working within higher risk services will be prioritised for training, and training will be rolled out to all Managers identified by their Lead Executive Director as requiring it, within 12 months of the date of this policy. 23. Lessons Learned Independently of the outcome, the Risk Management Team will work closely with the service manager and staff involved, to develop an action plan. This plan must clearly address any issues that have been highlighted by the claim. It must also have realistic timescales, and indicate who is responsible for its achievement. The Organisation Risk and Governance Management Committee will monitor the action plan and endorse decisions to share the lessons leant with relevant stakeholders to promote patient safety and quality. In addition, lessons learnt as a result of a claim will also be discussed at the NHS Lincolnshire Patient Safety and Safeguarding Report Learning from Experience group. The purpose of the group to provide a forum within which to systematically review and learn from patient s reports and surveys, and from patient complaints and incidents and claims, to ensure that lessons are integrated in to future Organisation policy and practice. Furthermore, lessons learnt from claims will be included within the aggregated Lincolnshire Patient Safety and Safeguarding Report Learning from Experience report presented to the Organisation Board on a quarterly basis. Page 16 of 33

17 24. Alternative Dispute Resolution Patients and their families may want a wider range of remedies than litigation is designed to provide, such as an apology, an explanation or reassurance. The Pre-Action Protocol for the resolution of clinical disputes recommends that effort should be made to discuss and negotiate settlement prior to any court proceedings; indeed, courts encourages parties to explore alternative dispute resolution. Alternative approaches may include face-to-face discussions with the claimant, early evaluation of the claim by a legal expert and internal arbitration. Planned face-to-face meetings may be helpful in exploring further treatment or alternate care pathways for the patient. Issues might be resolved locally via the NHS complaints procedure [where no formal claim has yet been made], or by mediation [facilitated negotiation assisted by an independent, neutral party]. The Claims Manager and senior staff involved in the case should explore these options jointly. Where the matter has been reported to the NHSLA, or is likely to be reported, it should be discussed with and approved by them. 25. Nuisance Claims Decisions on whether to settle non-reportable claims will normally be based on an assessment of the likely outcome of the claim, on the balance of probabilities, should it come to court. Exceptionally, in the case of small nuisance claims where the cost of defending the claim would far outweigh the cost of settlement, an offer with no admission of liability may be considered. Any decision on settling a nuisance claim will be authorised by the Chief Executive and / or the Director of Finance & Contracting and should be based on the following considerations: The strength of the Organisation s defence. The relative costs of defending or settling the claim. The likelihood of a settlement attracting further similar claims. Documentation showing reasons for the decision on whether or not to continue to defend the action should be filed in the claim file. 26. Reporting Arrangements It is the role of Claims Manager to prepare reports and other submissions as required for the NHSLA and the Organisation s Board and Risk and Governance Management Committee. These reports must adhere to NHS duties of confidentiality but will typically include the following details: The number and aggregate value of claims and details of any individual claims. The progress and likely outcome of these claims, including the expected settlement date. The final outcome of the claim. Any proposed remedial action arising out of a particular claim. Identification of any trends in relation to claims received. Systematic reporting of claims data will be undertaken to specific Strategic Groups within the Organisation. Page 17 of 33

18 Organisation Board will receive information on the number and type of claims received as part of an aggregated report including data on incidents, serious untoward incidents, complaints; ministerial contacts and adverse incidents. The purpose of the report to support the co-ordinated and systematic review of complaints, claims; incidents and serious untoward incidents to ensure lessons learnt are effectively collated and communicated to the Organisation Board and area of key risk identified. The report will be received by the Organisation Board on a quarterly basis. Risk and Governance Committee will receive quarterly reports detailing the number and type of claims received; the service areas to which the claims relate and updates on the closure of claims together with any recommendations identified as a result of the claim. 27. Matters to report to the NHS Litigation Authority Clinical or non-clinical incidents which are reported according to the Incident Policy and graded as high risk using the risk rating tool, e.g. death of a patient or serious injury. Particularly report those incidents revealing a possible breach of duty and leading to potentially large value claims with damages exceeding 250,000. These should be reported as soon as possible - even before the claim is made. Claims arising from a complaints investigation where the response indicates that an admission of liability has been implied. Requests for disclosure of records where the preliminary analysis indicates the possibility of a claim with a significant litigation risk, regardless of value. A formal letter of claim from solicitors as the first indication of any action. Court proceedings against the Organisation. Inquests where there is known criticism / concern about patient care. The NHSLA also requires notification of any potential claim for other events such as: MP involvement. Media attention. Human rights issues. Multi-party actions, e.g. organ retention. Multiple claims from a single source. Novel, contentious or repercussive claims. 28. Risk Management 28.1 Reporting All staff are expected to co-operate fully in Risk Management processes - these are known to reduce potential claims against the Organisation. Clinical incidents will be reported promptly in accordance with the Incident Reporting Arrangements (Clinical and non Clinical). Where it is believed that a claim against the Organisation may follow, the Director with lead responsibility for claims and the Claims Manager must be notified as soon as possible. In all such potential claims, Directorates should conduct a root cause analysis and seek witness statements as required. All information should be sent to the Claims Manager. High standards of documentation are essential in medical records, to ensure that the facts are available in the event of a claim being made. Page 18 of 33

19 When staff are asked to provide reports, statements or comments, they will be reminded as necessary on whether their reports are potentially disclosable in the event of a claim proceeding. Where any risk management issues are identified during the course of managing a claim, these will be dealt with in accordance with the Organisation s Risk Management Strategy. For all such potential claims: an investigation using the principles of root cause analysis will be initiated including witness statements. where, during the course of managing a claim, any risk management issues are identified, these will be dealt with in accordance with the Organisation s Risk Management Strategy Grading Of Claims All claims will be graded, taking into account the original incident report and other relevant factors, including: Actual severity - the seriousness of the harm caused as well as the financial implications of the claim. Future risk to patients. Future risk to the organisation. Likelihood of claimant success. The initial risk level grading will be revised only when the action plan has been completed and the changes in practice can be shown to have reduced the level of risk. This grading procedure will be consistent with other adverse incident grading and risk assessments undertaken within the Organisation. Please refer to the NHS Lincolnshire Risk Management Strategy; Incident Reporting and Learning Policy and Serious Incident Reporting Policy Remedial Action The lead director and the service manager for the relevant area will identify any procedures or aspects of clinical practice requiring remedial action. This will include a systematic review of all cases after closure, and should follow the root cause analysis process Root Cause Analysis A root cause analysis should be completed for all investigations that might lead to claims. This is to identify the real source of the incident and to establish legal causation. Root cause analysis can also reveal underlying system failures and other contributory factors that may have had an impact on the incident. In line with national requirements, the Organisation is applying this approach to investigations into adverse incidents, complaints and claims. Further information is contained in the Organisation s Incident Reporting and Complaints Arrangements. The lead director will agree a clear allocation of responsibility for implementing any remedial action, identified within an action plan, and for disseminating any wider lessons from the root cause analysis, both within the Organisation and with other relevant organisations. As referenced in section. Action plans will be monitored by the Governance and Risk Management Committee. Page 19 of 33

20 An ongoing analysis of claims against the Organisation will be instituted to identify trends and emerging patterns with implications for the Risk Management policies of the Organisation. As referenced quarterly reports will be submitted to the Organisation Board and Risk and Governance Committee The director with lead responsibility for claims is responsible for ensuring that reports are submitted through the Risk and Governance Committee and Organisation Board Liaison with External Agencies The Director with lead responsibility for claims will liaise with appropriate Organisation Directors to determine if external agencies should be involved in the claim investigation process. This could involve ensuring reports are sent to external agencies following investigation of the claim or of any incidents that are identified through the claims process. External Agencies could include for example:- NHS East Midland Health and Safety Executive HM Coroner Police Professional Regulatory Body Liaison with any relevant legal representatives will be carried out by the Claims Manager as required by the NHSLA. 29. Monitoring and Evaluation All claims or potential claims are reported immediately to the Claims Manager, the Director lead for claims and the Chief Executive. Progress on the claim is reported to the Organisation Governance and Risk Management Committee and subsequently notified to the Organisation Board. Monitoring compliance with the claims management policy will be established through review and assessment of the quarterly claims (aggregated Learning from Experience) reports and relevant action plans to the Governance and Risk Management Committee and Organisation Board. 30. Triggers to Invoke the Claims Policy Serious untoward incidents, particularly where possible breach of duty has been identified. Complaint responses where admission of liability is implied. Requests for case notes where a potential claim is being investigated against the Organisation, or where solicitors have made an actual claim / sent a formal letter of claim. Court proceedings issued against the Organisation. Inquests where there is known criticism / concern about a patient s care. Damage to Organisation buildings and theft of property. Small claims for lost / damaged items, bad debt, write-offs. Damage involving Organisation vehicles. Personal Injury claims Page 20 of 33

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