Claims Management Procedure

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1 SH NCP 15 Version: 1 Summary: Keywords (minimum of 5): (To assist policy search engine) Target Audience: This document outlines the procedure that will be followed to manage claims made against the Trust and should be read in conjunction with the Claims Management Policy. Claims, Legal, Litigation, Sue, NHSLA, Management Head of Legal & Insurance Services and staff involved in dealing with a claim. Next Review Date: June 2019 Approved and ratified by: Quality and Safety Committee Date of meeting: 14/08/12 Date issued: Author: Sponsor: Louisa Felice - Head of Legal & Insurance Services Helen McCormack - Medical Director Head of Legal & Insurance Services 1

2 Version Control Change Record Date Author Version Page Reason for Change June 2012 June 2015 Louisa Felice 1 Amalgamation of the two policies previously held by Hampshire Community Health Care and Hampshire Partnership NHS Foundation Trust. Sarah Pearson 1 Procedure reviewed, no changes were made. Review date extended for further 4 years to June Reviewers/contributors Name Position Version Reviewed & Date No additional reviewers to of this policy as there are no significant changes, other than making it relevant to Southern Health structures and separating it out into a separate policy and procedure. Liz Bega Legal Services Administrator Reviewed Sarah Pearson Head of Legal & Insurance Services Reviewed Head of Legal & Insurance Services 2

3 Contents 1 Introduction General Claims Handling Procedures Specific procedure for handling clinical negligence claims Specific procedure for handling employer/public liability claims Specific procedure for handling Property Expenses Scheme (PES) claims... 7 Head of Legal & Insurance Services 3

4 1 Introduction 1.1 This document sets out the Trust s procedures for managing claims and complies with the requirements of the National Health Service Litigation Authority (NHSLA) claims management guidance, the Pre-Action Protocol for the Resolution of Clinical Disputes and the Pre-Action Protocol for the Resolution of Personal Injury claims. It should be read in conjunction with the Trust s Claims Management Policy to which it is linked. 1.2 The NHSLA requires the Trust to comply with its reporting guidelines which detail good practice in claims management. They encourage appropriate tasks to be handled by the Trust rather than by referral to solicitors, and also widen the definition of a claim to encompass complaints/incidents/inquests, if a significant litigation risk is presented. 1.3 For the purposes of this document where duties are assigned to the Head of Legal & Insurance Services, these may in fact be carried out by an administrator at the discretion of the Head of Legal & Insurance Services. 2 General Claims Handling Procedures 2.1 The primary aim of managing claims is to identify what went wrong or may have gone wrong in order to minimise the risk of an adverse outcome in the future. The specific procedures for handling different types of claims is set out in the sections below. General principles will apply to all claims as follows:- On receipt All frontline staff must take urgent action on receiving a letter of claim or notification of a potential claim as tight timescales are enforced and non compliance can lead to the NHSLA withdrawing cover. All claims letters must be forwarded to the Litigation Manager who will acknowledge receipt to the claimants solicitor s within 14 days The Head of Legal & Insurance Services will check that the claim is the responsibility of the Trust. Where a claim is not the responsibility of the Trust, they will write back to the originator, stating why it is not the responsibility of the Trust and indicating who is responsible if this is known The Head of Legal & Insurance Services will check that the limitation period has not expired (see section 6.4 of Claims Management Policy) and will liaise with the NHSLA and originator if it has. All claims will be promptly notified to the relevant scheme within the NHSLA in accordance with that scheme s reporting guidelines by the Legal Services administrator Where proceedings (i.e. Claim Form and Particulars of Claim) are served without prior notice, the Head of Legal & Insurance Services will telephone the NHSLA upon receipt in order to agree immediate steps. All claims will be recorded on a local electronic database by the Legal Services administrator Head of Legal & Insurance Services 4

5 Checks will be made by the Head of Legal & Insurance Services to determine whether a previous incident or complaint investigation has taken place. managers will be informed so that appropriate support mechanisms for staff involved in potential claims can be put in place from the outset Investigation process If a claim has been reported to the NHSLA and it is accepted, an NHSLA Claims Manager will be allocated. The NHSLA Claims Manager will decide whether a solicitor will be instructed and will inform the Head of Legal & Insurance Services as to what further action or investigation is required. claims will be investigated by the Trust (led by the Head of Legal & Insurance Services) in conjunction with relevant staff and, where appropriate, external agencies the Trust (through the NHSLA) will produce a detailed response to a Letter of Claim within 3 months The NHSLA or nominated solicitors will advise the Head of Legal & Insurance Services on the progress of the claim, the potential for media interest, and likely court dates. Conclusion of a claim A claim can conclude in a number of ways:- the claimant or the Trust succeeds at trial; the claim is settled before trial; the claim is withdrawn/discontinued. Once a claim has been concluded, the NHSLA will provide the Trust with a closure document giving a breakdown of costs and damages. The Trust should advise all staff involved in the case of the outcome. 3 Specific procedure for handling clinical negligence claims 3.1 The Head of Legal & Insurance Services will manage these claims up to the CNST reporting stage (i.e. the receipt of a Letter of Claim and/or Part 36 offer), in accordance with the CNST Reporting Guidelines (Fifth Edition, 2008) and the Pre-Action Protocol published under the new Civil Procedure Rules in 1999, and the requirements of the NHS Litigation Authority effective from 1 st August 2006, by being responsible for the following elements: Report letter of claim to NHSLA immediately through electronic claims management system Report to relevant internal stakeholders within 3 days including the Chief Operating Officer Acknowledge the letter of notification to claimant s solicitors within 14 days Commence preliminary analysis of facts, liability and quantum. Undertake detailed investigation in liaison with the NHSLA Claims Assessor in accordance with the Trust s Investigation, Analysis and Learning Policy. Notify clinicians/request statement/report as appropriate Head of Legal & Insurance Services 5

6 Completion of preliminary investigation/analysis within 45 days to allow NHSLA time to prepare defence. Under the Pre-Action Protocol for Personal Injury Claims, a Defendant has a maximum of three months from acknowledging the Letter of Claim to investigate the issues and provide a formal decision on liability in a Letter of Response. Obtain medical records and any other associated documentation and advise clinician of disclosure Trigger disclosure of medical records and any other associated evidence/documents within 40 days if this has not already been done Review the claim at regular intervals, dependent upon claim progression Continue to keep key individuals advised of the claim progress In the event of claim settlement ensure clinicians and key individuals are advised. 3.2 In addition, the CNST reporting guidelines require Trusts to report the following events as claims. (The definition of a claim in this instance being allegation 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 Trust ):- i) Incidents reported, graded red (adopting the NPSA reporting procedure) and investigated which reveal a possible breach of duty leading to a potential large value claim (i.e. damages of over 250,000). These cases are to be reported by the Governance & Risk Management Lead to the Legal & Customer Services Manager who will prepare the preliminary analysis. ii) Claims arising from a complaints investigation where the response, on the facts, indicates that an admission of liability has been implied. The Head of Legal & Insurance Services will be made aware of these complaints by the Complaints & PALS team. iii) Requests for disclosure of records where the preliminary analysis indicates the possibility of a claim with a significant litigation risk, regardless of value. The Head of Legal & Insurance Services will be made aware of these complaints by the subject access administrators. 3.3 NHSLA authorisation is required before admissions may be made and monetary compensation may be offered. In the absence of such authorisation, the NHSLA will not reimburse members either for the compensation awarded or for any of the costs generated. Any such payments made by trust, will fall outside the Scheme and could possibly result in criticism from auditors unless prior communication is had with the NHSLA. 4 Specific procedure for handling employer/public liability claims 4.1 The procedure is the same as for clinical negligence claims (section 3 above) with the only difference in timescales being a requirement to acknowledge the letter of claim to the claimant s solicitors within 21 days instead of There are also incidents, not necessarily the subject of a formal Letter of Claim, that require the Trust to commence immediate investigation and the collation of documentation. These are generally of a more serious nature, for example: Health & Safety Executive investigations, Fatalities, other serious injuries. This list is not Head of Legal & Insurance Services 6

7 exhaustive and if Members are in doubt as to whether an incident is serious they should seek advice from the NHSLA. 5 Specific procedure for handling Property Expenses Scheme (PES) claims 5.1 The Head of Legal & Insurance Services is responsible for receiving, assessing and notifying property expenses claims covered by the NHSLA s Property Expenses Scheme (PES) in conjunction with the relevant General Manager/Facilities Manager, as detailed in the NHSLA PES manual. The following claims will be reported:- All cases where the potential will exceed the excess ( 25,000 buildings and 10,000 contents). Cases within 20% of the excess, regardless of whether the Trust wishes the NHSLA to handle the claim on a sub-excess basis. Cases where the potential develops to the extent that the excess will be breached. 5.2 In event that the damage is caused by the Trust s own actions, the matter still needs to be notified to the NHSLA. It is possible that the Trust will be able to recoup some of the losses under cover of the PES scheme (again, consideration must be given to the potential value of the claim). 5.3 In the event that the circumstances of the incident are as a result of a Contractor s actions this clearly needs to be identified to the NHSLA. Head of Legal & Insurance Services 7

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