UNIVERSITY HOSPITALS OF LEICESTER NHS TRUST

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1 UNIVERSITY HOSPITALS OF LEICESTER NHS TRUST CLINICAL NEGLIGENCE, PERSONAL INJURY, AND PROPERTY CLAIMS HANDLING POLICY APPROVED BY: THE TRUST BOARD DATE: 6 TH JUNE 2002 REVIEW: ORIGINATOR: ANNUALLY MICHAEL EDWARDS, ASSISTANT DIRECTOR OF CORPORATE AND LEGAL AFFAIRS (ADMIN) TRUST REF: A5/2002 1

2 Clinical Negligence Personal Injury and Property Claims Handling Policy CONTENTS 1.0 Introduction 2.0 Definition of Terms 3.0 Management Arrangements 4.0 Professional Advice 5.0 Action on Receipt of a Letter of Claim 6.0 Responding to the Letter of Claim 7.0 Front Line Staff 8.0 Procedures for Handling Claims 9.0 Financial Management 10.0 Claims Handling Reports and Interface 11.0 Relationships with External Bodies 12.0 Claims Database 2

3 1.0 INTRODUCTION 1.1 This Policy sets out the procedures for handling clinical negligence and personal injury and property claims. 1.2 This Policy recognises and reflects the guidance given in the NHS Circular reference EL(96)11 dated 1st April The Pre-Action Protocol for the Resolution of the Clinical Disputes, the Pre-Action Protocol for the Resolution of Personal Injury claims and current standards required by the NHS Litigation Authority. 1.3 The Pre-Action Protocol for the Resolution of Clinical Disputes and the Pre-Action Protocol for the Resolution of Personal Injury Claims requires the management of disputes within commonly accepted standards. The protocols are designed to:- Encourage openness Encourage parties to resolve disputes Reduce delays and costs Reduce need for litigation Ensure key staff including the Senior Claims Advisor and Claims Advisers, are appropriately trained, have some knowledge of healthcare law, the complaints procedure and principles of risk management. Ensure that practice complies with commonly accepted standards and is routinely monitored through audit and risk management. Set up adverse reporting systems in all specialties, thus enabling evidence to be collated quickly to make it easier to advise patients with an accurate explanation of what went wrong. Use the results of adverse incidents and complaints positively. Ensure that patients receive clear and comprehensive information in an accessible form about how to raise their concerns or complaints. Establish efficient and effective systems of recording and storing patient records, notes, diagnostic reports and x-rays and retain them in accordance with DoH guidance. Advise patients of a serious adverse outcome and provide on request an oral or written explanation of what happened; changes in procedure which will benefit patients; and information on further steps that can be taken including an offer of future treatment, an apology and/or compensation. 3

4 1.4 The Pre-Action Protocol for the Resolution of Clinical Disputes further provides that patients and their advisers should: Report any concerns to the Trust as soon as is reasonably possible. Consider full range of options available including a request for an explanation, a meeting, a complaint, alternative dispute resolution, mediation and negotiation not only litigation. Inform the Trust when the patient is satisfied, that the matter has been concluded. 2.0 DEFINITION OF TERMS 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 Trust, or who enters legal proceedings against the Trust or who pursues compensation. Claim Where the context allows, any action against the Trust initiated by a claimant or any claim lodged by the Trust under the terms of the Property Expenses Scheme. Clinical Negligence Scheme for Trusts (CNST) The scheme, operated by the NHS Litigation Authority, of which the Trust is a member and which assumes liabilities for the appointment of Solicitors and the settlement of all claims, in full, which are made against member Trusts. Liabilities to Third Parties Scheme (LTPS) The scheme operated by the NHS Litigation Authority, of which the Trust 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 member Trusts. Property Expenses Scheme (PES) The scheme which is operated by the NHS Litigation Authority of which the Trust is a member, which assumes liability for the management and settlement of all claims made by the Trust in respect of premises and property. Regional Medico Legal Service (RMLS) A practice of Solicitors within the NHS based at Peterborough District Hospital appointed by the Trust to review all new clinical negligence claims received and provide legal advice. 3.0 MANAGEMENT ARRANGEMENTS The Claims and Litigation Department shall be responsible for the management of all clinical negligence and personal injury claims lodged against the Trust, and shall manage all claims made by the Trust in respect of Trust property and contents. 4

5 Claims management responsibilities shall be delegated to the Claims Advisers by the Senior Claims Adviser who shall assume responsibility for the department on a day to day basis. The Senior Claims Adviser shall report to the Assistant Director of Corporate and Legal Affairs (Admin). 4.0 PROFESSIONAL ADVICE The Senior Claims Adviser will be responsible for, and ensure that, legal advice is sought: Where a formal complaint is pursued under the NHS Complaints Procedure and where there is a demand for compensation. When there is a request for disclosure for records under the relevant Pre-Action Protocol indicating that the claimant is contemplating legal action against the Trust. When a letter of claim is received. Where legal proceedings have been entered against the Trust. The legal advice sought will include: liability and causation an assessment of the strength of the defence and the balance of probabilities an assessment of quantum of damages including best and worse case the likely costs of defending the claim the need for and identity of expert witnesses alternative methods of dispute resolution In those cases where causation is an insurable matter for which the Trust has purchased commercial insurance, it shall be referred to the Trust s Administration Office which shall assume responsibility for the administration of the claim. 5.0 ACTION ON RECEIPT OF A LETTER OF CLAIM On receipt of any indication from a claimant that the claimant is seeking compensation arising from allegations of medical negligence, the Senior Claims Adviser will forward all details to Regional Medico Legal Services (RMLS), the Trusts appointed advisers on medical claims. RMLS will prepare a report on liability, causation and quantum. The request for disclosure of medical records will be acknowledged using the First Response Form prescribed by the Pre-Action Protocol. As soon as a formal letter of claim is received, the Senior Claims Adviser shall report the claim to the Clinical Negligence Scheme for Trusts in 5

6 accordance with the CNST Reporting Guidelines. A formal letter of claim shall include: The main allegations of negligence The injuries sustained The present condition and prognosis Any financial loss with an indication of the heads of damage. On receipt of notice of any potential personal injury claim, all information shall be reported to the Liabilities to Third Parties Scheme. Charges for copy medical records should be in line with those laid down in the Data Protection Act 1998 or Access to Health Records Act 1990 where the patient is deceased. The key factors giving rise to the claim shall be identified and the claim shall be graded according to the following priority ratings. Priority 1 All deaths Perceived major failings in Clinical Care/General Care/Operational Standards causing permanent harm. Potential for significant litigation including all cases where potential damages will exceed 250k. Threat of National/Local adverse publicity. Ministerial correspondence MP correspondence HR Issues including serious professional misconduct. Multi Party Actions and Serial offenders. Novel contentious or repercussive cases. Priority 2 Perceived serious failings in Clinical care/general care/operational standards resulting in harm. Potential for high to moderate litigation including all cases where potential damages fall between 25k and 250k. Threat of local adverse publicity. Priority 3 Perceived failings in general care expectations. Non-clinical issues and policies. 6.0 RESPONDING TO THE LETTER OF CLAIM On receipt of a Letter of Claim by the Trust, it shall immediately be submitted to the NHSLA in accordance with the rules of the relevant scheme (CNST, PES, LTPS). The NHSLA will appoint a Panel Firm of Solicitors to act on behalf of the Trust in the legal management of the claim. 6

7 7.0 FRONT LINE STAFF To ensure that defence of any claim is maximised, or in the case of property and contents claims, are fully documented and substantiated, the full co-operation of all front-line staff is essential. Statements and where appropriate, opinions shall be sought and carefully considered. In respect of clinical negligence claims, the Consultant with responsibility for the overall care of the claimant will be consulted prior to release of medical records to the claimant and/or their nominated Solicitor. The consultant or, if not still in post, the appropriate clinician responsible for the on-going care of the patient shall be kept advised of the progress of the claim, including details of the claims resolution. 8.0 PROCEDURES FOR HANDLING CLAIMS The following procedures will be adopted for all claims wherever applicable: setting up a record on the claim and maintaining a claims review system; establishing when needed an objective account of the original incident, giving appropriate weight to the recollection of the staff originally involved. For more recent incidents, this should already be available from the adverse incident report; identifying all records related to the incident; establishing and maintaining contact with all staff involved in the original incident; obtaining an in-house expert view of the claim and, if appropriate, securing suitable external expert witnesses; initial valuation of the claim; procedures to identify any procedures or aspects of clinical practice requiring remedial action, including systematic review of all cases after closure; clear allocation of responsibility for carrying through any remedial action required and for disseminating any wider lessons, both within the Trust/health authority and (where appropriate) more widely; arrangements for analysis of claims against the Trust/Health Authority, in particular of trends and emerging patterns with implications for the Risk Management policies of the Trust (or in the case of a health authority, for its provider units policies); arrangements for regular reporting to the Board or to a subgroup of the Board, both in aggregate and on individual claims; 7

8 when a claim is concluded all clinicians and relevant staff involved be notified of the outcome. The NHSLA shall be responsible for: negotiation of out-of-court settlements; consideration of the use of ADR methods; (for large settlements, in particular those over 250,000, where the plaintiff is agreeable) evaluation of the costs and benefits of structuring the settlement, negotiation of the details, and preparation of the VFM report for the NHS Executive; 9.0 FINANCIAL MANAGEMENT The Trust is required to maintain a formal register of all losses and compensation payments made. This register is maintained by Finance and must include all compensation payments and full details of all losses, whether covered by insurance or not. With effect from 1 April 2002, the Trust Board has delegated to authorise losses and compensation payments without reference to the Department of Health. However, the Trust has a duty to report any material losses or compensations to NHS Executive in circumstances that are deemed to be of a contentious, novel or repercussive nature. Responsibility for the accounting and management of clinical negligence claims was transferred to the NHS Litigation Authority on 1 April However, the Trust retains legal responsibility for such claims. In respect of other legal claims such as personal injury and property losses, the Trust retains financial provision for the policy excess, associated damages and legal costs in its annual accounts. The existing policy excesses are as follows: Scheme CNST Property Expenses Scheme Liabilities to 3 rd Parties Scheme Excess applicable Nil 20,000 10,000 for Trust employees 3,000 for members of the public In order to ensure the completeness and accuracy of Trust accounts, the Claims and Litigation Department shall notify the Financial Accountant of all personal injury claims lodged against the Trust and all claims made by the Trust in respect of Trust property, upon receipt (or submission). 8

9 In addition, the Financial Accountant will be provided with comprehensive quarterly reports on all legal claims. In all instances the Finance Directorate will be given the maximum possible notice of any cash payments associated with legal claims. 10. CLAIMS HANDLING REPORTS AND INTERFACE The Trust Board will receive regular reports on: i ii iii the number and aggregate value of claims, and details of any major individual claims; the progress and likely outcome of these claims; the final outcome of all significant contention claims; These reports will be in sufficient detail to enable the Board to form a view of the Trusts Liabilities and/or contentious issues arising. Further reports of all relevant claims will be submitted to relevant Directors/Clinical Directors, the Adverse Healthcare Events Group and Health and Safety Committee for the purposes of but not limited to: Identifying risks poor practices and trends Improving healthcare provision Minimising risk of reoccurrence 11. RELATIONSHIP WITH EXTERNAL BODIES (i) (ii) Regional Medico Legal Services (RMLS) On receipt of an indication from a claimant that compensation in respect of medical negligence is sought, RMLS shall provide a report in accordance with 5.0 above. RMLS shall be consulted on any issues where medico-legal advice is sought. Trust Solicitors The Trust works with a number of Solicitors depending upon the nature of the matter being considered. In addition to and notwithstanding (i) above, whenever legal advice is required (in addition to and/or is not available form the Panel Solicitors appointed from time to time by the relevant Risk Pooling Scheme) the appropriate Solicitors shall be approached for advice. The Assistant Director of Corporate and Legal Affairs (Administration) shall maintain a list of all Solicitors approved for these purposes from time to time by the Trust. (iii) Coroners Office All communications with the Coroners Office shall be conducted via the UHL Inquest Officer. The Inquest Officer shall be responsible for organising statements from staff and shall work in close liaison with Claims Advisers in determining which cases are the subject of, or likely to be the subject of, such circumstances the Claims Advisers shall review all statements before submission to the Coroner. 9

10 Wherever appropriate, the Claims Advisers shall organise legal representation at any inquest involving a claim or potential claim for compensation. Normally, this representation will be provided by RMLS. (iv) Police Whenever any claims also involve the Police, the Claims Advisers shall seek the advice of the Assistant Director of Corporate and Legal Affairs (Administration) who shall provide guidance on each case according to its specific circumstances. Generally, the Trusts Policy on providing cooperation with the Police will be observed. 12. CLAIMS DATABASE A claims database will be maintained containing information on all claims. MGE/NA/CLINICALNEGLIGENCEPOLICY-UPDATE 24 th March

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