CLAIMS MANAGEMENT & INVESTIGATION POLICY. Clinical Negligence, Personal Injury & Property Claims. 3.0 Corporate. 3.2 Trustwide Management

Transcription

1 CLAIMS MANAGEMENT & INVESTIGATION POLICY Clinical Negligence, Personal Injury & Property Claims SharePoint Location Non-Clinical Policies and Guidelines SharePoint Index Directory 3.0 Corporate Sub Area 3.2 Trustwide Management Key words (for search purposes) Claims, management, investigation Central Index No 2335 Endorsing Body Clinical Governance Endorsement Date 12 th August 2010 Review Date August 2013 Lead author and designation Dr Paramjit Samrai Legal Services Manager Claims Policy February 2010 Page 1 of 17

2 KEY POINTS: This policy Sets out how clinical negligence, personal injury and property claims are managed and investigated. Provides information about the National Health Service Litigation Authority s schemes Has been assessed using an Equality Impact Assessment screening template and has no adverse impact on any particular group, sex, ethnicity, religion, gender or disability. As a result it is considered that a full Equality Impact Assessment is not necessary. The screening template can be found at Appendix 4. Claims Policy February 2010 Page 2 of 17

3 INDEX Background... 4 Purpose and Scope 4 1. Definition of Terms Board Level Responsibility Legal Services Department Clinicians and Managers Training 4 6. Complaints Incidents Investigation of Claims Request for Medical Records & other Documentation NHSLA Schemes Reporting of Clinical Negligence Claims to NHSLA Definition of a Clinical Negligence Claim Clinical Negligence Scheme for Trusts (CNST) Existing Liabilities Scheme (ELS) Reporting of Personal Injury and Property Claims to Commercial Insurers Reporting of Personal Injury and Property Claims to NHSLA Definition of a Claim Liabilities to Third Parties Scheme (LTPS) Employers Liability Excess Public Liability Excess Property Expenses Scheme (PES) Excess PFI Claims NHSLA Reporting Requirements Documentation Assessment of Liability & Quantum NHSLA Authorisation Communication with Relevant Stakeholders Property Claims/Ex Gratia Payments Reimbursement of Expenses Incurred Delegated Limits Database & Provision of Information Reporting/Lesson Learning Support Services Commercial Claims Monitoring & Effectiveness Equality Impact Assessment. 11 Appendix 1 References 12 Appendix 2 Audit Template.. 13 Appendix 3 Monitoring Table.. 14 Claims Policy February 2010 Page 3 of 17

4 BACKGROUND It is important that the Trust ensures that all claims are managed efficiently and effectively and in accordance with the National Health Service Litigation Authority s (NHSLA s) guidelines. The Trust wants to make certain that where appropriate lessons are learned from claims. PURPOSE AND SCOPE This policy sets out to provide staff with guidance on how clinical negligence, personal injury and property claims (claims) affecting the Trust should be managed, investigated and reported. A pro-active and sensitive approach is essential throughout the claims management process to ensure claims are concluded as soon as possible and legal costs are kept to a minimum. 1. DEFINITION OF TERMS A claim is an intimation of litigation against the Trust. 2. BOARD LEVEL RESPONSIBILITY As well as having responsibility for Risk Management, the Medical Director will have overall responsibility for the management of claims affecting the Trust. 3. LEGAL SERVICES DEPARTMENT The day-to-day management of claims affecting the Trust will be the responsibility of the Legal Services Manager, who will be assisted by the Assistant Legal Services Manager. The Legal Services Manager will be directly accountable to the Medical Director. The Trust Board recognises the importance of appointing a Legal Services Manager with experience in managing clinical negligence and personal injury claims. 4. CLINICIANS AND MANAGERS Clinicians, general managers, assistant general managers and heads of department are responsible for responding promptly to requests for information and documentation from the Legal Services department. 5. TRAINING Training will be arranged by the Trust where appropriate. Both the Legal Services Manager and the Assistant Manager are qualified solicitors and are obliged to comply with the Law Society training requirements (16 hours of Continuing Professional Development courses annually). 6. COMPLAINTS The Complaints Manager will immediately notify the Legal Services Manager of any complaint that could potentially result in a claim against the Trust. The Legal Services Manager will advise on responses on request. Once the investigation into the complaint is complete the Complaints Manager will provide the Legal Services Manager with a copy of any complaint file where the complainant has stated that he/she intends to bring legal proceedings against the Trust. Claims Policy February 2010 Page 4 of 17

5 When a clinical negligence claim is received the Legal Services department will check with the Complaints department whether there is a relevant complaint file. 7. INCIDENTS The Assistant Director: Risk and Occupational Health will immediately notify the Legal Services Manager of any incident that could potentially result in a claim against the Trust and will forward a copy of the incident form as soon as reasonably practicable. Once the investigation into the incident is complete the Assistant Director: Risk and Occupational Health will provide the Legal Services Manager with a copy of the investigation findings and recommendations. The Legal Services Manager is a member of the Serious Clinical Incident Group and will therefore be aware of all serious incidents. When a claim is received the Legal Services department will check with the Risk Management department whether there is a relevant incident form. 8. INVESTIGATION OF CLAIMS If a claim has not already been investigated in accordance with the Complaint Policy or the Policy for the Management of Adverse Events & Near Misses, including the Management of Serious Incidents, it will be investigated by the Legal Services Manager, or Assistant Manager. Any such investigation will include obtaining comments/statements of relevant staff, conducting interviews when appropriate and analysis of all relevant data including medical records. Any causal factors identified will be discussed at the Complaints, Litigation claims, Adverse Events and PALS (CLAEP) group meeting (please refer to the CLAEP procedure and terms of reference). Subject to approval from the NHSLA further investigation may be necessary, eg. independent expert evidence. 9. REQUEST FOR MEDICAL RECORDS & OTHER DOCUMENTATION The Legal Services Manager, or Assistant Manager, will be responsible for disclosure of copy medical records and other relevant documentation pursuant to the Data Protection Act 1998 and the Access to Health records Act 1990, any other statute and any pre-action protocol under the Civil Procedure Rules. If insufficient information has been supplied in the application further details will be requested. The copy medical records will be provided within 40 days of the request for disclosure and payment of the relevant fee as far as is reasonably practicable. 10. NHS LITIGATION AUTHORITY (NHSLA) SCHEMES The NHSLA handles negligence claims made against NHS bodies through five schemes. Three of these relate to clinical negligence claims but only 2 are relevant to the Trust; the Clinical Negligence Scheme for Trusts (CNST) and the Existing Liabilities Scheme (ELS). The other two schemes cover non clinical risks; the Liability to Third Parties Scheme (LTPS), and the Property Expenses Scheme (PES), known collectively as the Risk Pooling Schemes for Trusts (RPST). 11. REPORTING OF CLINICAL NEGLIGENCE CLAIMS TO NHSLA 11.1 Definition of a Clinical Negligence Claim Claims Policy February 2010 Page 5 of 17

6 A clinical negligence claim arises where there are 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 Trust Clinical Negligence Scheme for Trusts (CNST) When a claim is made against a member of the CNST the NHS body remains the legal defendant. However, the NHSLA takes over full responsibility for handling the claim and meeting the associated costs. The costs of the scheme are met by membership contributions. The present CNST excess is nil this effectively means all clinical negligence claims are potentially reportable to the NHSLA The Trust is a member of the CNST. All relevant information requested by the NHSLA or any panel firm it instructs in respect of any claim arising from an incident after 1 st April 1995 will be provided within any timescales that may be specified as far as is reasonably practicable. Clinical Negligence Claims will be reported to the NHSLA in accordance with the Clinical Negligence Reporting Guidelines which state which claims require reporting. Notification of most claims comes via a request for medical records. If in the opinion of the Legal Services Manager or the Assistant Legal Services Manager there is the possibility of a claim with a significant litigation risk the claim will be reported to the NHSLA within 2 months of the request as far as is reasonably practicable Existing Liabilities Scheme (ELS) Claims under the ELS will often be made against NHS bodies which no longer exist because of subsequent restructuring within the NHS. The legal defendant in such an ELS claim will be the legal 'successor body' to the now-defunct NHS body, in some cases this will be the Trust The Trust is a member of the ELS and will provide all relevant information as requested by the NHSLA in respect of any claim arising from an incident prior to 1 April 1995 within any timescales that may be specified as far as is reasonably practicable. Claims will be reported to the NHSLA in accordance with the Clinical Negligence Reporting Guidelines. All such claims will be directly managed by the NHSLA. 12. REPORTING OF PERSONAL INJURY AND PROPERTY CLAIMS TO COMMERCIAL INSURERS Employers and public liability claims and property claims arising from an incident prior to 1 December 1999 are covered by commercial insurance. The Assistant Legal Services Manager will liaise with the Trust s insurers regarding the investigation and management of such claims. All information requested by the commercial insurers will be provided within any timescales that may be specified as far as is reasonably practicable. Claims Policy February 2010 Page 6 of 17

7 13. REPORTING OF PERSONAL INJURY AND PROPERTY CLAIMS TO NHSLA 13.1 Definition of a Claim A personal injury or property claim will arise where there is a demand for compensation made following an adverse incident resulting in damage to property and/or personal injury or a serious adverse incident/outcome representing a significant litigation risk to the Trust Liabilities to Third Parties Scheme (LTPS) The LTPS covers employers' public and products liability claims. The Trust is a member of the LTPS and will provide all relevant information as requested by the NHSLA in respect of all employers liability and public liability claims arising from an incident after 30 November Claims will be reported to the NHSLA in accordance with the LTPS membership rules and the LTPS Claims Reporting Guidelines. All claims will be managed in accordance with those rules thereafter. The NHSLA will instruct its own claims investigators and/or solicitors as and when required. All information requested by such parties will be provided within any timescales that may be specified as far as is reasonably practicable Employers Liability Excess The excess that applies to employers liability claims is 10,000. All employers liability claims will be reported to the NHSLA regardless of their potential value Public Liability Excess The excess that applies to public liability claims is 3,000. Public liability claims brought by litigants in person which clearly fall within the excess will not be reported to the NHSLA. Such claims will be investigated like any other claim (see para. 8) and all settlements will be within the relevant delegated limits (see para. 22). Where there is any doubt about the value of the claim it will be reported to the NHSLA in the first instance Property Expenses Scheme (PES) The PES provides cover for 'first party' losses such as theft or damage to property. The Trust is a member of the PES and will provide all relevant information as requested by the NHSLA in respect of any property claims arising from an incident after 30 November Claims will be reported to the NHSLA in accordance with the PES membership rules. All claims will be managed in accordance with those rules thereafter. All information requested by the NHSLA or any third party instructed on its behalf will be provided within any timescales that may be specified as far as is reasonably practicable Excess There is a 20,000 excess on building damage, a separate 20,000 excess on contents damage and a 24hour deductable on Business Interruption cover. Claims that clearly fall within the excesses will Claims Policy February 2010 Page 7 of 17

8 not be reported to the NHSLA. Such claims will be investigated in the usual way (see para. 20) and all settlements will be within the relevant delegated limits (see para. 22). Where there is any doubt about the value of the claim it will be reported to the NHSLA in the first instance. 14. PRIVATE FINANCE INITIATIVE - PFI The Assistant Legal Services Manager will notify Peterborough (Progress Health) PLC of any claim where it is believed an indemnity is owed to the Trust within 20 business days as stipulated in the Project Agreement. The Assistant Legal Services Manager will respond promptly to all reasonable requests for information or documentation from Peterborough (Progress Health) PLC and will adhere to the Conduct of Claims clauses in the Project Agreement. 15. NHSLA REPORTING REQUIREMENTS 15.1 Legal proceedings will be reported to the NHSLA immediately Part 36 Offers will be reported to the NHSLA immediately by telephone and fax In clinical negligence claims Letters of Claim will be reported to the NHSLA within 48 hours as far is reasonably practicable. An acknowledgement will be sent to the claimant s solicitors within 14 days In personal injury claims Letters of Claim will be reported to the NHSLA and acknowledgements will be sent to the claimant's solicitors within 21 days The NHSLA will be advised as early possible should any of the following features arise: MP involvement Media attention Human Rights issues Multi-party actions Multiple claims from a single cause Novel, contentious or repercussive claims 16. DOCUMENTATION Every report of a claim to the NHSLA will be on a standard Report Forms and accompanied by the following (where appropriate): 16.1 Preliminary analysis setting out a summary of the background, views on breach of duty, causation and quantum, claimant s funding, risk management implications and recommending further action to be taken Statements of staff Relevant incident/complaint documentation Letter of Claim. Claims Policy February 2010 Page 8 of 17

9 16.5 Documentation detailed in the relevant Personal Injury Protocol Standard Disclosure Lists 16.6 An NHSLA Disclosure List signed by an Executive Director Any other relevant documentation. 17. ASSESSMENT OF LIABILITY & QUANTUM The Legal Services Manager will assess the following: The probability of a Claimant being able to establish liability and causation. The Quantum of damages on both a worst case and PML (Probable Maximum Loss) basis. The reserve for the claim, taking into account the legal costs of the Trust and the Claimant s solicitors. The possibility of resolving any dispute by mediation. 18. NHSLA AUTHORISATION Claims will be handled in accordance with the NHSLA s written guidance. The NHSLA s authority will be sought before the advice of Counsel or expert evidence is sought in respect of liability, causation and/or quantum. All settlements will be approved by the NHSLA prior to any negotiations taking place, and no admissions will be made without NHSLA authorisation. 19. COMMUNICATION WITH RELEVANT STAKEHOLDERS Upon receipt of a claim the Legal Services department will alert the relevant members of staff. Depending upon the type of claim this may include the head of department, the Consultant, the Medical Director, the General Manager, the Clinical Lead, the Complaints Manager, the Assistant Director: Risk and Occupational Health, the Health & Safety Adviser, the Associate Director Project, and the Peterborough (Progress Health) PLC representative. Where appropriate the claimant's GP and the relevant PCT and Strategic Health Authority will also be informed. 20. PROPERTY CLAIMS/EX GRATIA PAYMENTS Property Claims which fall below the NHSLA excesses will be handled by the Legal Services Department. Investigations into injuries/losses will be coordinated by the Assistant Legal Services Manager. The relevant Ward/Department must be satisfied that the property cannot be found and that the Trust is responsible/partly responsible for the loss. Only then can a Property Claim Form be completed. Claimants must always be asked if receipts are available for any missing items. The form must be signed by the relevant Ward Manager/Head of Department and countersigned by the appropriate Assistant General Manager/Matron. Payment of all claims must be approved by the Director of Finance or the Assistant Director of Finance. Once a claim for compensation form is received by the Legal Services Department the claim will be registered and an acknowledgement will be forwarded to the claimant. Receipts will be requested if available and estimates will be requested where appropriate. If the claim is approved by the Director of Claims Policy February 2010 Page 9 of 17

10 Finance, a cheque will be requested and forwarded to the claimant by the Assistant Legal Services Manager. 21. REIMBURSEMENT OF EXPENSES INCURRED In general unnecessary expenses incurred by patients/relatives due to the short notice cancellation of clinics/admissions/operations will not be reimbursed. However in extenuating circumstances consideration will be given to the reimbursement of travel expenses and loss of earnings. Occasions when such reimbursements will be made will be rare and will be at the discretion of the Legal Services Manager following an investigation into the particular circumstances of the loss suffered. 22. DELEGATED LIMITS 22.1 Claims of less than 500 The Assistant Legal Services Manager has delegated authority to settle claims up to Claims of less than 1,000 The Legal Services Manager has delegated authority to settle claims up to 1, Claims between 1,000 and 50,000 Settlement of these claims will require the authority of the Finance Director Claims between 50,000 and 100,000 Settlement of these claims will require the authority of both the Finance Director and the Chief Executive Claims above 100,000 Settlement of these claims will require the authority of the Trust Board. 23. DATABASE & PROVISION OF INFORMATION The Legal Services Department will maintain a database of all clinical negligence and personal injury claims affecting the Trust. The NHSLA's quarterly reports will be considered by both the Legal Services Manager and the Assistant Legal Services Manager, the Assistant Manager will make any necessary amendments to the information held on the Trust's database. The database will provide details, inter alia, of the reserve for each claim. The Assistant Manager will provide the finance department with a quarterly report on personal injury claims and respond to any requests for updated information in between those reporting periods. 24. REPORTING/LESSON LEARNING The Legal Services Manager will report new claims and the outcome of closed claims to the CLAEP group. Any patterns/trends or other areas of concern will be highlighted and where appropriate recommendations will be made to reduce the chance of a recurrence. Each quarterly CLAEP report is submitted to the Claims Policy February 2010 Page 10 of 17

11 Clinical Governance Committee and is made available to all members of the Chief Executive s Advisory Forum and the Board of Directors. 25. SUPPORT SERVICES The Legal Services Department will ensure that support is provided to those staff involved in a claim. A representative from the Legal Services Department will attend conferences with Counsel and trials to support staff where necessary. Staff will be offered the opportunity of a referral to the Occupational Health Department if requested. The OHD is able to provide assistance with stress etc. by way of counselling and other forms of help. 26. COMMERCIAL CLAIMS The Trust maintains a number of commercial insurance schemes to provide cover that supplements NHSLA arrangements this includes: accident cover for staff involved in Major Incidents; property insurance above the NHSLA 1m limit; cover for income generation schemes; Directors and Officers Liability insurance These schemes are maintained by the Trust's Company Secretary who in the event of any claim will liaise with the Trust's brokers and Assistant Legal Services Manager. 27. MONITORING AND EFFECTIVENESS This policy will be monitored through feedback on the Trust s handling of claims from the NHSLA and commercial insurers. THE CLAEP group will provide the opportunity for the policy to be monitored from an internal perspective. Annual audits on a random selection of claims will be performed by the Assistant Legal Services Manager to ensure that appropriate action is being taken within the required timescales. The audit template can be found at Appendix 2. Any deficiencies identified by these monitoring processes will be reported to the Legal Services Manager who will take the necessary action to rectify any failings and where necessary additional audits will be carried out to ensure improvements have been made. The Monitoring Table is at Appendix EQUALITY IMPACT ASSESSMENT This policy has been assessed using an equality impact assessment initial screening template and is deemed to meet current equality requirements. Please refer to Appendix 4. Claims Policy February 2010 Page 11 of 17

12 APPENDIX 1 - REFERENCES REFERENCES 1. Complaint Policy, May 2009, Lesley Crosby, Assistant Director: Patient & Public Experience, Intranet 2. Policy for the Management of Adverse Events & Near Misses, including the Management of Serious Incidents 2010, David Ireland, Assistant Director: Risk & Occupational Health, Intranet 3. Procedure for the systematic analysis and reporting of Complaints, Litigation claims, Adverse Events and PALS reports (CLAEP Report), & Terms of Reference, February 2010, Mr J Randall, Medical Director, Intranet 4. Data Protection Act 1998, opsi.gov.uk 5. Access to Health records Act 1990, opsi.gov.uk 6. Civil Procedure Rules, justice.gov.uk 7. Clinical Negligence Reporting Guidelines, Fifth edition, NHSLA, nhsla.com 8. LTPS Membership Rules, August 1999, NHSLA, nhsla.com 9. LTPS Claims Reporting Guidelines, October 2007, NHSLA, nhsla.com 10. Letter of 21 July 2006, Steve Chahla, NHSLA, nhsla.com 11. PES Membership Rules, August 1999, NHSLA, nhsla.com 12. Project Agreement, GPHIP Office 13. Letter of 22 April 2010, Scott Henning, NHSLA, nhsla.com Claims Policy February 2010 Page 12 of 17

13 Ref: APPENDIX 2 AUDIT TEMPLATE No. Trigger Date Received Response Date Target 1. Request for records/agreement to charges Disclosure 40 days 2. Reported to NHSLA 2 months 3. Letter of Claim Reported to NHSLA 48 hrs/21 days 4. Acknowledgement 14/21 days 5. Part 36 offer Reported to NHSLA 24 hrs 6. Proceedings Reported to NHSLA 24 hrs 7. Incident form requested 8 Complaint file requested 9. Notification to stakeholders - Clinician - Medical Director - General Manager - Clinical Lead - Associate Director: Risk & OH - Dept/Ward Manager - Health & Safety Adviser - Associate Director: Project - Peterborough (Progress Health) PLC - GP - PCT - SHA COMMENT: Claims Policy February 2010 Page 13 of 17

14 APPENDIX 3 MONITORING TABLE Monitoring Table Process to be monitored How will compliance with the outlined process be monitored? Frequency By who? If compliance gaps have been identified, who is responsible for creating an action plan, and ensuring implementation of required changes? Disclose medical records within specified timescale Audit Annually Assistant Legal Services Manager Legal Services Manager Report to NHSLA within specified timescale Audit Annually Assistant Legal Services Manager Legal Services Manager Letter of Claim reported within specified timescale Audit Annually Assistant Legal Services Manager Legal Services Manager Part 36 Offer reported within specified timescale Audit Annually Assistant Legal Services Manager Legal Services Manager Proceedings reported within specified timescale Audit Annually Assistant Legal Services Manager Legal Services Manager Communication with stakeholders Audit Annually Assistant Legal Services Manager Legal Services Manager Claims Policy February 2010 Page 14 of 17

15 APPENDIX 4 EQUALITY IMPACT ASSESSMENT SCREENING FORM Peterborough and Stamford Hospitals NHS Foundation Trust STAGE ONE : Equality Impact Assessment (EqIA) Screening form Assessing Functions/Policies for Relevance Blue boxes are to be filled in Free text Yellow boxes - Click the box to select from the drop down list Select from drop down box Name of function/service/strategy/policy/project (activity) to be assessed: Name(s) of those completing this EqIA Screening form: Claims Management & Investigation Policy Tammy Blackmore - Assistant Legal Services Manager CBU/Department Corporate Support Date 11-Feb-10 Function/service/strategy/policy/project (activity) aim or purpose: To set out how clinical negligence, personal injury and property claims are managed, investigated and reported Is this a new or existing activity? Existing policy What are the intended results of this activity? To ensure the Trust complies with reporting guidelines and manages claims effectively Claims Policy February 2010 Page 15 of 17

16 How will you measure the outcome of the activity? Feedback from the NHSLA and by auditing claims files Who is intended to benefit from the activity? The Trust Please identify any internal/external groups who have been consulted regarding this activity: None Use the table below to identify whether the activity could/does have a positive impact, a negative impact or no impact at all on either any or all of the equality groups specified. Age Disability Ethnicity/Race Gender Religion/Belief Sexual Orientation Eliminating unlawful or unjustifiable discrimination Promoting equality of opportunity Promoting positive attitudes and good community relations Eliminating harassment or victimization Encourage involvement and participation Eliminating health inequalities Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral Neutral If there is either a Positive (Disability group exempted) or a Negative impact you must consider completing the Stage Two - Full Equality Impact Assessment form to address or remove any significant potential/actual impact. Claims Policy February 2010 Page 16 of 17

17 Decision to proceed (please select): No, we have decided that it is not necessary to carryout a full EqIA If you have selected "Yes, a full EqIA is required", please identify when the Full EqIA will be completed. Date Reason for decision to proceed or not to full EqIA There are no aspects of the policy that could discriminate against any group Executive Director/General Manager - I confirm that I have been briefed and agree with the results of this EqIA. Name Dr Paramjit Samrai Date 15-Feb-10 Job Title Legal Services Manager Please note the following: It is essential that this EqIA screening form is discussed by your management team and remains readily available for inspection. A copy should also be forwarded to the Communications team for publication on the Trust's internet site. Claims Policy February 2010 Page 17 of 17