CLAIMS HANDLING POLICY

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1 TIT CLAIMS HADLIG POLICY Approved by: Assurance & Performance Committee On: 28 May 2008 Review Date: May 2010 Directorate responsible for Review Corporate Affairs Policy umber: CS001 Signed by: Moosa Patel Associate Director of Corporate Affairs Page 1 of 13

2 Equality Impact Assessment 1. Does the policy/guidance affect one group less or more favourably than another on the basis of: Race, Ethnic origins (including gypsies and travellers) and ationality Yes/o Comments Gender Age Religion, Belief or Culture Disability mental and physical disabilities Sexual orientation including lesbian, gay and bisexual people 2. Is there any evidence that some groups are affected differently? 3. Is there a need for external or user consultation? 4. If you have identified potential discrimination, are any exceptions valid, legal and/or justifiable? 5. Is the impact of the policy/guidance likely to be negative? /A 6. If so can the impact be avoided? /A 7. What alternatives are there to achieving the policy/guidance without the impact? 8. Can we reduce the impact by taking different action? /A /A Page 2 of 13

3 CLAIMS HADLIG POLICY First Date Version Version one Trust Board 7 December 06 Version two A&P Committee 28 May 2008 Amendment Incorporates new guidance from HSLA Page 3 of 13

4 Contents Paragraph Page 1. Introduction 5 2. Purpose 5 3. Definitions 5 4. Board Level Responsibility 5 5. Claims Management Responsibility 6 6. Qualified Legal Advice 6 7. Involvement of Front Line Staff 7 8. Support Mechanisms for Patient s / Carers and Staff 7 9. Procedure for Handling Claims Liabilities to Third Parties Scheme (LTPS) Claims Information and Confidentiality Relationships with Other Systems Investigation and Root Cause Analysis Liaison with External Agencies Delegated Limits uisance Claims Reports to the Clinical Review Group ovel, Contentious or Repercussive Payments Use of Checklists and Retrospective Sampling References in Relation to Claims Handling Associated Documents 13 Page 4 of 13

5 1 Introduction The PCT is committed to effective and timely investigation and response to any claim, which includes allegations of clinical negligence or personal injury. Through the provision of reliable and complete information from the start of any claim, the PCT will be able to ensure that any healthcare governance issues, which may emerge, are addressed promptly and the outcomes used to facilitate wider organisational learning. 2 Purpose 2.1 The PCT will handle clinical and non-clinical (employers/public/property liability) negligence claims in accordance with the provisions of this policy. It sets out the arrangements, which are the minimum standards in accordance with the provisions of the clinical negligence and non-clinical liability guidance (Clinical egligence Scheme for Trusts (CST) Reporting Guidelines - January 2007 and on Clinical Claims Reporting Guidelines). 3 Definitions 3.1 A claim is defined as allegations of clinical negligence and/or a demand for compensation made following an adverse clinical incident resulting in personal injury or any clinical incident, which carries significant litigation risk for the PCT. 3.2 This includes complaints leading to claims notification of serious adverse events, incident reports generated by risk management processes any of which represent a significant litigation risk and requests for the disclosure of medical records. 3.3 The ational Health Service Litigation Authority (HSLA) is a special Health Authority responsible for handling clinical and non-clinical negligence claims made against HS bodies in England. The HSLA administers the following schemes: Clinical egligence Scheme for Trusts (CST) covers all clinical negligence claims against member HS bodies where the incident in question took place on or after 1 April Incidents before this date are covered by the Existing Liabilities Scheme (ELS) Liabilities to Third Parties Scheme (LTPS) covers employers liability claims for injuries sustained in the workplace, public liability claims for personal injury sustained by visitors to HS premises, product liability claims and cover for professional negligence by employees and liabilities of directors Property Expenses Scheme (PES) - covers accidental loss of, destruction of or damage to any property owned by or the responsibility of the PCT 4 Board Level Responsibility 4.1 The Associate Director of Corporate Affairs will have responsibility for clinical negligence, employers /public liability litigation and property claims respectively, and Page 5 of 13

6 will keep the Assurance and Performance Committee and the Provider Quality and Clinical Governance Committee informed of major developments. 5 Claims Management Responsibility 5.1 The Legal Assistant to the Associate Director of Corporate Affairs, (herein the Legal Assistant), will be responsible for the management of all claims made against the PCT. It will be the Legal Assistants responsibility to keep the Associate Director of Corporate Affairs informed on all claims (refer to section 6.4) 5.2 The Legal Assistant will act with the delegated authority of the Associate Director of Corporate Affairs when it is considered appropriate to do so. 6 Qualified Legal Advice 6.1 The PCT will in all cases, provide an effective and pro-active claims management service working closely with the PCT s designated Legal Advisor and in line with the requirements of the Pre-Action Protocol for the Resolution of Clinical Disputes, CST Reporting Guidelines and on Clinical Claims Reporting Guidance. The advice should cover: (a) Liability and causation (b) An assessment of the strength of the defence and the balance of probabilities (c) The likely quantum of damages, including the best and worst case (d) The likely legal costs of defending the claim. 6.2 Legal advice and HSLA approval will also be sought in deciding which expert witnesses to instruct and whether the dispute is capable of being resolved through other ways, e.g. through mediation. 6.3 The principles set out above will apply to all non-clinical litigation where the value of the claim is below the current excess in the LTPS/PES and where, following discussions with the HSLA, the provision of qualified legal advice is considered appropriate. 6.4 The Associate Director of Corporate Affairs will be kept informed by the Legal Assistant of cases when advice has been given: (a) To defend a claim (b) To settle a claim (c) To make interim payments (d) To make a payment into Court (e) To agree costs Page 6 of 13

7 (f) To appoint mediators or take other steps in relation to alternative dispute resolution 6.5 The PCT will satisfy itself that its advisers should be regarded as having a duty of care to us. It will therefore ensure that its advisers carry a sufficient level of professional indemnity cover. 7 Involvement of Front Line Staff 7.1 The co-operation of front line staff is essential to allow early assessment of the merits of claims, and plan their future management. In clinical negligence cases, the view of healthcare professionals and key staff involved in the treatment which has given rise to the claim must be considered carefully by the Associate Director of Corporate Affairs and the Legal Assistant, together with the advice of the HSLA, before a decision is made to settle or contest the claim. 8 Support Mechanisms for Staff 8.1 The PCT recognises the importance of ensuring the PCTs employees are appropriately supported during what can be a lengthy and stressful litigation process. Staff will receive the necessary support from their directorate managers and will be kept regularly informed via the Legal Assistant of any developments during this process. 9 Procedure for Handling Claims 9.1 There will be a clearly documented procedure for handling claims in accordance with the Pre-Action Protocol for the Resolution of Clinical and on Clinical Disputes and CST reporting guidelines and on Clinical Claims Reporting Guidelines. This will involve the following aspects: (a) Setting up a record on the claim and maintaining a claims review system. (b) Establishing when an objective account of the original incident is needed, giving appropriate weight to the recollection of the staff originally involved. (c) Identifying all records related to the incident. (d) Establishing and maintaining contact with all the staff involved in the original incident. This will very often involve making contact with staff that are now working for other employers. The PCT will give every assistance to make staff available for this purpose and would expect appropriate arrangements to be in place within other HS Bodies. (e) Obtain an in-house 'expert view' of the claim and, if appropriate, secure suitable external expert witnesses. (f) Obtain a risk assessment of the claim and an initial valuation. Page 7 of 13

8 (g) Obtain approval from the HSLA to instruct solicitors, brief counsel and monitor their costs. (h) For employer/public and PES liability cases, liaison with the HSLA and their solicitors. (i) egotiation of out of court settlements (j) Consideration of the use of alternative dispute resolution methods. (k) Liaison with the HSLA, for clinical and non-clinical negligence cases involving a potential claim, which falls to the CST, ELS, LTPS or PES. (l) Feeding any risk management issues identified during claims assessment into the PCT s risk management systems, including systematic review of all cases after closure. (m) Clear allocation of responsibility for carrying out any remedial action required and for disseminating any wider lessons both within the PCT and where appropriate more widely. (n) Arrangement and analysis for claims against the PCT, in particular any trends or emerging patterns that have implications for the overall risk management of the PCT. (o) Arrangements for authorised persons to sign Disclosure Statements and Statements of Truth verifying the disclosure of records and contents of the Defence. 10 Liabilities to Third Parties Scheme (LTPS) 10.1 With effect from 1 August 2006, all new claims reported to the HSLA must include the following documentation: - HSLA LTPS Report Form Letter of Claim All documents relating to the type of claims being reported A completed HSLA Disclosure List must accompany all reported claims, indicating which documents are enclosed by means of a tick in the appropriate box. The Associate Director of Corporate Affairs must sign the declaration Upon receipt of a Letter of Claim, the Legal Assistant will promptly identify the type of claim and complete the HSLA Disclosure List having identified the relevant documents. For every workplace claim the first page of the HSLA Disclosure List must be completed, together with the appropriate page relating to the specific type of workplace claim It should be noted that claims will not now be accepted into the Scheme without the necessary documents. Where no list and documents are attached the HSLA will hold the claim pending receipt of these papers. If papers are not forthcoming within Page 8 of 13

9 one month of the first receipt of the papers the HSLA reserve the right to reject the claim. 11 Claims Information and Confidentiality 11.1 The PCT will maintain an information system Datex which will incorporate all information on personal injury claims, both clinical negligence and non-clinical injury. The information will only be used for a proper management function and defending claims or responding to complaints by those who have proper need for access to perform these functions. Care will be taken to ensure patient and staff confidentiality The information system will be consistent with the requirements of the CST, ELS, LTPS and PES, and compliance with the Data Protection Act 1998 and Access to Health Records Act To comply with the Data Protection Act, and the Pre-action Protocol for the Resolution of Clinical Disputes, records must be provided within 40 days of the request and payment of the fee, at a cost not greater than that specified by the Data Protection Act The records will be kept for the following periods: Type of Claim Type of Records Length of Time Clinical egligence Maternity records, Minimum 25 years protocols, policies and maternity care, including those records of episodes of maternity care that end in stillbirth of where the child dies later. Records, protocols and Until the policies relating to children and young people. patient s 25 th birthday or 26 th if entry made when young person was 17; or 8 years after the death of a patient if sooner. All other personal health Minimum 10 years records. Employers Liability All personal health Minimum 10 years Litigation Retention of Legal Records records. Any documents relating to legal actions or to complaints including accident record sheets, nursing duty rosters. Minimum 10 years after the incident or the matter complained of, or when an accident has been commenced, as legally advised. Page 9 of 13

10 12 Relationships to Other Systems 12.1 The PCT appreciates the importance of effective handling of complaints and litigation with regard to its reputation. The PCT will ensure that all Directorates are fully consulted on its claims handling policies and that appropriate arrangements are in place to ensure that the Associate Director of Corporate Affairs and the Legal Assistant are supported in the day to day handling of claims. The Assurance and Performance Committee and the Provider Quality and Clinical Governance Committee will establish how the results of retrospective review of claims can be used as an input to the clinical governance process and ensure organisational sharing of lessons learnt. 13 Investigations and Root Cause Analysis 13.1 Most claims will arise from incidents, which have already been reported in accordance with the PCT s Policy for the Management of Adverse Incidents and ear Misses including Serious Untoward Incidents (Q007) 13.2 It is important that the investigation process defined in Q007 will be followed to support the management of any claims or potential claims. 14 Liaison with External Agencies 14.1 The Associate Director of Corporate Affairs will liaise with appropriate PCT 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: - Strategic Health Authority Health and Safety Executive HM Coroner Police Professional Regulatory Bodies 14.2 Liaison with any relevant legal representatives will be carried out through the Legal Assistant, as required by the HSLA. 15 Delegated Limits 15.1 From April 2002 all claims for compensation arising from allegations of clinical negligence pass through the HSLA. As there are no longer any excesses in the CST scheme, all claims fall within it, and HSLA authorisation will be required before admissions are made and monetary compensation is offered In the absence of such authorisation the HSLA will not reimburse the PCT either for the compensation awarded or for any of the costs generated. Such payments, if made by the PCT will fall outside the scheme and could possibly result in criticism from auditors. Page 10 of 13

11 15.3 For non clinical claims the standard excesses applying are: Type of Claim Excess Employer Liability Claims 10,000 Public Liability Claims 3,000 Property Expenses Scheme (i) Buildings 20,000 Property Expenses Scheme (ii) Contents 20,000 Contract Works Damage to existing Structures 20, The PCT will be required to immediately report incidents or claims to the HSLA where the total cost of the case will approach or exceed the Scheme deductable, or excess The Assurance and Performance Committee and the PCT Confidential Board by exception will be notified of claims, which will by definition arise from serious clinical incidents. 16 uisance Claim 16.1 The PCT will seek to avoid settling cases of doubtful merit, however small, purely on a 'nuisance value' basis. The decision to settle a case or contest it will always be based on an assessment of the risk of losing (and the cost of legal fees of continuing, bearing in mind that if the claimant is legally aided these costs are unlikely to be recoverable). 17 Reports to the Assurance and Performance Committee 17.1 The Assurance and Performance Committee will see quarterly reports submitted by the Legal Assistant: (a) The number on aggregate value of claims and details of any major individual claims. (b) The progress and likely outcome of these claims, including the expected settlement date. (c) The final outcome of the claim and any proposed remedial action arising out of particular claims. The Provider Quality and Clinical Governance Committee will also be made aware of this on a quarterly basis The Assurance and Performance Committee and the Provider Quality and Clinical Governance Committee will analyse these reports at a level of detail, which will enable identification of emerging trends and where claims are linked to similar information on adverse incidents. 18 ovel, Contentious or Repercussive Payments 18.1 All claims involving 'novel, contentious or repercussive' expenditure will be referred to the HS Litigation Authority. The most likely incidences of such claims are: Page 11 of 13

12 (a) Claims involving some unusual feature, which, if not correctly handled, might set an unfortunate precedent for other HS litigation. (b) Claims which appear to represent test cases for a potential class action, or cases which although not formally part of a class action appear to be very similar in kind to concurrent claims against other HS bodies If the PCT is faced with such a claim which will fall under either of the above categories the Legal Assistant will take the following action: (a) Clinical egligence cases - the Legal Assistant will draw to the attention of the HSLA the particular features of the claim at the earliest occasion, usually when first notifying of the claim. The HSLA will advise on whether in their view the case does indeed fall into the 'novel, contentious or repercussive' category and inform where required the Department of Health. (b) The Legal Assistant will also inform the HSLA on claims with the following features: MP Involvement Media Attention Human Rights Issues Serial Offenders 18.3 In either case, where in the view of the HSLA, the claim forms part of a clinical or non clinical class action involving scheme members, it is likely that the HSLA will liaise closely with the PCT and be asked to co-ordinate the HS response. 19 Use of the Checklists and Retrospective Sampling 19.1 All payments in settlement of employer s/public liability claims will be entered into the Trust's Register of Losses and Special Payments. Where the payment has been partially funded from the Risk Pooling Scheme, this will be noted in the Register All payments in respect employers/public liability claims will comply with the reporting requirements of FDL(95)27. Page 12 of 13

13 20 References in Relation to Claims Handling Department for Constitutional Affairs, 1998 Pre-action Protocol for the Resolution of Clinical Disputes 1998/183 [online]. London: The Stationary Office. Available from Department for Constitutional Affairs, 1998 Pre-action Protocol for Personal Injury Claims [online]. London: The Stationary Office. Available from The ational Health Service Litigation Authority Framework Document. Available from (publications claims publications) Clinical negligence reporting guideline fourth edition January Available from (publications claims publications) on-clinical claims report guideline. Available from (publications claims publications) HSLA Disclosure List. Available from (publications claims publications) 21 Associated Documents Policy for the Management of Adverse Incidents and ear Misses including Serious Untoward Incidents (Q007) Page 13 of 13

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