Claims Procedure. Date ratified: February Quality Committee

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1 Claims Procedure Version: GV.007 v2 Ratified by: Quality Committee Date ratified: February 2011 Name of originator/author: Governance Facilitator (Risk & Claims) Name of responsible Quality Committee committee/individual: Date issued: February 2011 Review date: February 2014 Target audience: All staff GV.007. v2

2 Document Status Approved Policy ref / Version (if appropriate) Change from V1 to V2 when changes are made to draft. Policy reference only once approved. DOCUMENT CHANGE HISTORY Version Date Comments (i.e. viewed, or reviews, amended, approved by person or committee) V1 November 2010 New Procedure V2 February 2011 Ratified Groups or individuals for have been consulted with in production of document: Service Manager Forum Quality Committee Document reference: Review date for approved document: Care Quality Commission Regulation: NHSLA Standard: 5.4 Medway Community Healthcare Objective: February 2014 GV.007. v2

3 Contents Page 1 Introduction 4 2 Purpose and Scope 4 3 Objectives 4 4 Definition of a Claim 5 5 Duties and Responsibilities 6 6 Role of NHS Litigation Authority Purpose NHSLA Schemes 8 7 Identification of Claims or Potential Claims 8 8 Procedure for Notification of a Claim or Potential Claim 9 9 Procedure when Proceedings are Served Without Prior 10 Notice 10 Reporting the Claim to the NHSLA Timescales for Exchange of Information Liaison with Third Parties Investigation Outcome Measures and Process for Monitoring Compliance and Effectiveness Links to Other policies and Procedures References 14 Appendices Appendix A Clinical Negligence Scheme for Trusts (CNST) 15 Explained Appendix B 17 CNST Claims Report form Appendix C Risk Pooling Schemes For Trusts (RPST) Explained 19 Appendix D Liabilities to Third Parties(LTPS) Explained 20 Appendix D LTPS Claim Report Form 26 GV.007. v2 2

4 Appendix E Pre-Action Protocol for the Resolution of Clinical 30 Disputes Appendix F What to do in the event of a claim 32 GV.007. v2 3

5 1 Introduction Medway Community Healthcare (MCH) is committed to the timely and effective investigation and response to any claim that includes allegations of clinical negligence or personal injury. This document sets out the procedure for handling of all claims brought against MCH. The requirements of the National Health Service Litigation Authority (NHSLA) will be followed in the assessment and management of each claim. This policy is based on current guidance from the NHSLA. Any future changes in guidance will be followed and the procedures may change accordingly. This procedure covers: Potential and Actual Clinical Negligence Claims (CNST) Potential and Actual Third Party Liabilities Claims (LTPS) Property Claims (Buildings, contents and Vehicles) 2 Purpose and Scope The purpose of this policy is to detail the structure and framework for the management of claims made against MCH. It incorporates the requirements of the NHSLA risk management standards for PCT s for: Clinical Negligence Scheme for Trusts (CNST) Appendix A Liabilities of Third Parties Scheme (LTPS) Appendix B Property Expenses Scheme (PES) Appendix B The above schemes are administered by the NHSLA, however, where possible the NHSLA encourages appropriate tasks to be handled by MCH rather than referral to solicitors The NHSLA has national responsibility for overseeing all claims against NHS Trusts who are members of its Schemes, therefore it has final responsibility for the agreement of all claims for compensation arising from allegations of clinical negligence, third party liability or property expenses. MCH remains the defendant therefore any admission of liability are to be a joint decision between the NHSLA and MCH. 3 Objectives Medway Community Healthcare will: Manage claims effectively, efficiently and in the most cost effective manner as practicable Manage all claims in line with the Civil Procedures Rules Pre-Action Protocol. GV.007. v2 4

6 Formally investigate all claims. Root Cause Analysis principles will be applied to all significant claims (See Serious Incident Policy) Inform the NHSLA will of any claims made under CNST, LTPS or PES. Endeavour to provide individuals with accurate information concerning their claim, subject to legal professional privilege Provide support and advice to employees who are subject to a litigation process Encourage early settlement of a claim, if on investigation, a claim is found to be valid, subject to the approval of the NHSLA and the Director of Finance. Encourage more pre-action contact with claimants or their representative In managing claims the following general principles will apply: All claims will be promptly notified to the relevant scheme within the NHSLA in accordance to their reporting guidelines All claims will be recorded on DATIX and given a unique reference number Claims investigations will be carried out by the relevant manager, supported by the Governance Department and in line with MCH s investigation procedures Root Cause Analysis will be carried out on claims, as appropriate, in line with MCH s Serious Incident policy. An analysis will be carried out and lessons learnt will be shared within MCH in order to reduce the risk of reoccurrence. 4 Definition of a Claim According to the NHSLA 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 Trust. A claim is also: A demand for compensation made following an adverse incident resulting in damage to property and / or personal injury. Defining an incident as a claim or potential claim in the absence of a demand for compensation does not mean that compensation will paid, but that a preliminary analysis should be carried out and the matter may need to be reported to the NHLSA. There are four main types of claims that could be made against MCH: Clinical Negligence Injury to a patient as a result of clinical treatment GV.007. v2 5

7 Employer Liability Injury to staff during the performance of their duties Public Liability Injury to a patient or any member of the public by virtue of that individual being on NHS premises (excludes injury arising from clinical treatment or damages to or loss of property) Miscellaneous including but not limited to: - damage to buildings from fire, flood or other events; damage to equipment or property belonging to MCH; loss or theft of equipment or property belonging to MCH. 5 Duties and Responsibilities The Board The MCH board has overall responsibility for promoting a climate of openness and ensuring that the PCT board is informed and assured that the claims management system is working effectively. Managing Director The managing director has ultimate responsibility within MCH to for the handling of claims and ensuring they are dealt with effectively and efficiently Associate Director Governance The associate director Governance is the designated Board member with responsibility for compliance with claims procedure and is responsible for providing a quarterly progress report on all claims to the Board. Governance Facilitator (Risk and Claims) The Governance facilitator has overall responsibility for the effective management and monitoring of all claims. The Governance facilitator will receive and consider all claims made against MCH and will ensure these are recorded on DATIX, notified to the associate director Governance and the NHSLA is notified if applicable Risk Management Sub Committee The Risk Management Sub Committee is responsible for assessing the risk to MCH of all claims and where necessary the risk is included on the Corporate risk register and lessons learnt are cascading and implemented where necessary. Associate Directors / Service Managers / Line Managers Associate Directors / Service Managers / Line Managers will act as the investigating managers for any claim within their service area or where appropriate an investigator will be appointed from outside the service area. They will assist in gathering information requested by the NHSLA and forward their finding to the Governance facilitator. They are also responsible for any Root Cause Analysis of any claim or potential claim and the production, actioning and monitoring of any action plan required. The appointed investigator will be responsible for GV.007. v2 6

8 maintaining comprehensive records of the investigation and ensuring an investigation report is produced which identifies lessons learnt and associated action plans. Clinicians / Specialist Advisers MCH will seek and utilise appropriate clinical and specialist advice in both the management and resolution of claims. MCH staff All Staff are responsible for: Reporting incidents as they occur (or retrospectively if not made aware of incident until later) in accordance with MCH s Incident Procedure. Alerting their manager and the Governance facilitator to matters which may lead to a claim whether clinical negligence or employer/public liability. Co-operating fully in the investigation of any claim, providing comments or statements as requested in a timely fashion. This applies to current and ex-employees. All NHS employees are covered by NHS Indemnity. Alerting the Governance facilitator immediately should a Claim Form (issued by the Court) or Claimant's solicitor's letter indicating a possible claim in relation to their NHS work be addressed to them personally. Alerting the Governance facilitator immediately should they receive a request for medical records addressed to them personally in a matter which could potentially become a claim against MCH. Keeping any 'privileged' documents filed separately from the medical records. Privileged documents are those produced in contemplation of litigation. Ensuring the safe keeping of any physical evidence which may be required in the investigation of a claim. Obtaining photographic evidence if appropriate where the physical environment is in issue and may subsequently change. Co-operating with the Investigation manager in identifying the root causes of an incident which has resulted in a claim. Identifying and taking the necessary actions to manage any risks highlighted by a claim. Duty of Confidentiality In accordance with MCH s Code of Conduct, all staff involved in the claims process must observe appropriate confidentiality. No documents will be disclosed without the appropriate consent. Any disclosure of patient records will be undertaken through the Procedure GV.007. v2 7

9 for Handling Access Requests in the Health Records Policy in accordance to the Data Protection Act Role of the NHS Litigation Authority 6.1 Purpose The NHSLA is a Special Health Authority set up under section 11 of the NHS Act It has been operational since 21 November The principle task of the NHSLA is to administer schemes set up under Section 21 of the National Health Service and Community Care Act This enable 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 of the carrying out of their functions. 6.2 NHSLA Schemes The NHSLA administer the following schemes: Clinical Negligence Scheme for Trusts (CNST) this covers liabilities for alleged clinical negligence where the incident occurred on or after 1 April Existing Liabilities Scheme (ELS) this covers liabilities for alleged clinical negligence claims which occurred before 1 April Liability to Third Parties Scheme (LTPS) this covers any liability to third parties where the original incident occurred on or after 1 April Property Expenses Scheme (PES) this covers expenses incurred from any loss or damage to property where the original loss occurred on or after April In addition there is also a scheme covering the outstanding liabilities for clinical negligence in respect of the former Regional Health Authorities. Further information is available on the NHLSA website 7 Identification of Claims or Potential Claims Claims may be identified as a result of an incident report, complaint, and request for access to records, employment tribunal, letter from claimant or solicitor or any other information that might indicate a claim is being made. For example: Where an untoward incident has occurred and it is apparent from the investigation/root cause analysis that there has been a possible breach of GV.007. v2 8

10 duty of care. Where there has been an allegation of professional misconduct. Where the preliminary analysis indicates that a claim may be pursued in respect of a request for access to health records. Where the response to a complaint implies an acceptance of liability of a potential claim. 8 Procedure for Notification of a Claim or Potential Claim All staff must take urgent action on receiving a letter of claim or potential claim as tight timescales are enforced and non compliance will lead to MCH being penalised financially, and may also lead to MCH being unable to defend the claim. See What to Do in the Event of Claim (Appendix D) Staff should immediately advise the Governance Facilitator Risk and Claims and their manager once aware of any claim or potential claim: The notification (actual or potential) whether by letter or otherwise must be passed to the Governance facilitator immediately without any acknowledgement of the claim as the timetable for dealing with such claims begins to run from the date of acknowledgement. All actual and potential claims will be logged on DATIX and the following action will be taken: 8.1 Check that the Claim is the Responsibility of MCH Where a claim is not the responsibility of MCH, a letter will be sent to the claimant stating why it is not the responsibility of MCH and indicating who is responsible if this is known. 8.2 Check that the Limitation Period has not Expired For a negligence claim, which includes a claim for personal injury, this is 3 years from the date of the incident or from the date of knowledge, if later. However, Section 33 of the Limitation Act 1980 gives courts the discretion to extend the limitation period in some circumstances. Time does not run for those under a disability. Minors can bring a claim in their own right after attaining the age of majority for incidents that occurred while they are minors and time will only start to run from that birthday. Even if the limitation period has expired, MCH will not ignore the claim. An analysis of the claim should be undertaken in case Limitation period is extended. 8.3 Check for Existing Information Check the Potential Legal Claims files and complaints files to ascertain whether this has been flagged as a potential claim. If no potential claim GV.007. v2 9

11 file or complaints file is in existence, check if there has been a Patient Liaison and Advocacy Service (PALS) contact regarding the matter that is the subject of a claim. Establish whether an incident form was created in relation to the subject matter. Set up a paper file,obtain all original documentation and keep in a secure and safe place. 8.4 Open a Claim/Potential Claim File All correspondence is to be filed in chronological order, with the most recent on top. A copy of all outgoing post should be retained on file in chronological order. File notes should be made of all discussions about a claim. All correspondence should be scanned and placed on DATIX under the relevant file. 8.5 Process Requests for Disclosure Ensure that the Pre-action Protocol for the Resolution of Clinical Disputes is followed including responding to Letters of Claim, Court Proceedings and Part 36 Offers. (Appendix D) The aim of the pre-action protocol is to ensure that all parties to an action have the relevant information needed to reach settlement wherever possible. Disclosure is an important part of the pre-action protocol. 9 Procedure when Proceedings are Served Without Prior Notice for Notification of a Claim or Potential Claim Where proceedings (i.e. Claim Form and Particulars of Claim) are served without prior notice, the NHSLA should be telephoned upon receipt in order to agree immediate steps. All documentation should be sent to the NHSLA immediately so that the NHSLA can take the appropriate procedural steps. This would usually include copies of the Complaints File, Incident Form and Witness Statements if these are available. This list is not exhaustive and a variety of documentation may be requested by the NHSLA, depending upon the nature of the claim. Once the NHSLA has been notified, the usual investigations should be carried out as quickly as possible by the Investigation manager (e.g., records and comments from clinicians obtained, check for a complaint file/incident report). All future correspondence from the claimant must be passed to the NHSLA or appointed solicitor without acknowledgement to the claimant. 10 Reporting the Claim to the NHSLA The NHSLA has issued detailed reporting guidelines that must be followed for all potential claims. (See Appendix D for details on specific types of claims). These procedures summarise the main points, but reference should also be made to the detailed guidelines on the NHSLA website. Further Investigation GV.007. v2 10

12 If a claim has been reported to the NHSLA and it is accepted, an NHSLA Claims Manager or Case Manager will be allocated. This officer will decide whether a solicitor will be instructed and inform MCH what further action or investigation is required. Future Conduct of the Claim The Governance facilitator, NHSLA Case Manager and the nominated solicitors will work closely to progress the claim. Where there is the potential for media interest or a case going to court, the managing director for MCH will be advised. All decisions on the handling of the case rests with the NHSLA, although MCH will be given the opportunity to comment on major decisions as MCH remains the legal Defendant. As a Defendant, an authorised officer in MCH must sign any documents that are to be submitted to the courts. Supporting Mechanisms for Patients/Carers and Staff Although, the NHS claims procedure is now designed to be as quick as possible it can still take considerable time before a claim goes to trial. During this period and at any point from the initial incident, it is important for MCH to offer staff any support that may be required (for example, counselling, assistance with how to write statements and how to provide evidence in court). MCH will ensure that the member of staff is treated with sensitivity, informed of progress, and have sight of any response letter. The relevant associate director will look to identify a member of staff to support those involved in a claim. Further details of MCH s policy on supporting staff can be found in the Being Open policy. Conclusion of a Claim A claim can conclude in a number of ways: the Claimant or MCH succeeds at trial the claim is settled before trial the claim is withdrawn/discontinued Once a claim has been concluded, the NHSLA will provide MCH with a closure document giving a breakdown of Defence costs, Claimant s costs and damages. All staff involved in the case will be advised of the outcome. Procedures for handling specific types of claims are set out in Appendix D. 11 Timescales for Exchange of Information The Pre-action Protocol requires: records to be disclosed within 40 days or within 20 days if the records have been accessed within 20 days of the request, in accordance with the Data Protection Act a letter of claim to be acknowledged within 14 days. GV.007. v2 11

13 a detailed and binding Letter of Response to be given within 3 months. disclosure statements certifying that the search for documents has been carried out to the best of the signatory s ability. Signed Statements of Truth to be provided for all documents submitted in connection with the claim including the Defence and Witness statements. MCH will work within the remit of the Pre-Action Protocols for dealing with civil claims as above. Statements of Truth may be signed by the following, with the exception of witness statements, which must be signed and dated on each page by the individual making the statement. the Chief Executive the Managing Director the Director of Finance & Assurance all Associate Directors 12 Liaison with Third Parties Where appropriate, the Governance facilitator will liaise with the appropriate directors/senior managers to determine if external agencies should be involved in the claim investigation process, for example: where suspicious circumstances are suspected, associate director Governance will advise if the Police should be informed. Where Health and Safety issues arise, and the matter has not previously been reported, Health & Safety manager will advise if the matter should be reported to the Health and Safety Executive. The associate director Governance will advise if the National Patient Safety Agency need to be involved. 13 Investigation and Root Cause Analysis All claims will be investigated under the Root Cause Analysis process. Details can be found in the Serious Incidents Procedure. The Investigation manager will be appointed by the associate director who is responsible for the area in which the initial event occurred. The Investigation manager will then identify officers to be interviewed and set the timescale for the investigation, including the production of a report and action plan. These timescales must reflect the requirements of this policy and be communicated to all relevant parties. It may become necessary to involve external agencies such as enforcing agencies, external stakeholders, external advisors etc. either to be involved in the investigation or for information. Third party investigation could be required if there is insufficient expertise or test equipment within the organisation, political considerations, the need to eliminate bias etc. The decision to involve external organisations will be taken by the associate director responsible for the area in which the initial event occurred. GV.007. v2 12

14 14 Outcome Measures and Process for Monitoring Compliance and Effectiveness Effective monitoring plays a key role in the successful delivery of the Claims Procedure Compliance wit the procedure will be achieved as follows: Outcome measure Method Who will undertake the monitoring Full compliance with the Claims procedure resulting in all claims being handled efficiently and effectively Staff are aware of their duties Claims are handled in accordance with the predetermined timescales Regular reporting to the Risk Management Committee on claims management, including actions, timescales and value of claim Random Questionnaires via Snap Audit a selection of claims to ensure timescales are being adhered to Governance Facilitator Governance Facilitator Associate Director Governance Frequency (min before next review of the policy) Every 2 months As a minimum every 2 years or before review of procedure As a minimum every 2 years or before review of procedure Process for reviewing results Reviewed by Risk Management Committee Reviewed by Associate Director Governance Reviewed by Risk Management Committee The Executive team will receive regular reports on progress with claims and an annual report will be provided to the Board. Lead managers / associate directors are responsible for monitoring any associated actions plans and disseminating any learning points as a result of any investigation across MCH. GV.007. v2 13

15 15 Linked Documents Customer Care Procedure Incident Procedure Procedure for Supporting Staff Involved in Complaints, Claims and Incidents 16 References Relevant guidelines or legislation that has been used National Health Litigation Authority (NHSLA). GV.007. v2 14

16 Appendix A Clinical Negligence Scheme for Trusts (CNST) The CNST, administered by the NHS Litigation Authority (NHSLA), provides an indemnity to members and their employees in respect of clinical negligence claims arising from events which occurred on or after 1 st April It is funded by contributions paid by member trusts and is often equated to an in-house mutual insurer. The Scheme relates to incidents occurring in the context of NHS trust employment, and clinicians own medical defence organisations (MDOs) continue to provide an indemnity in respect of private practice and independent GP and dental practice. In all cases, major or minor, it will be alleged that clinicians have failed to work to a suitably professional standard (the Bolam/Bolitho test) and that, in consequence, the patient has suffered injury and/or loss. Solicitor s panel The NHSLA has a panel of specialist solicitors and allocates practices to trusts. Once a panel firm has been instructed, it will represent the interests of the Authority, the member trust, and the trust s employees. One of the objectives set for the NHSLA by Parliament is to minimise the overall costs of clinical negligence to the NHS and thus maximise the resources available for patient care by defending unjustified actions robustly [and] settling justified actions efficiently. It is for the panel firms, in conjunction with the Litigation Authority, to work out the chances of a claim succeeding at trial, and the damages likely to be awarded, and then to advise on whether/how the claim should be defended or settled. What does the claimant need to prove? that the treatment fell below a minimum standard of competence; and that he/she has suffered an injury; and that it is more likely than not that the injury would have been avoided, or less severe, with proper treatment. What is the time limit for making a claim? The basic rule is three years from the date of injury, but it can be longer if: the patient is a child, when the three year period only begins on his/her eighteenth birthday. the patient has a mental disorder within the meaning of the Mental Health Act 1983 so as to be incapable of managing his/her own affairs, when the three year period is suspended. there was an interval before the patient realised or could reasonably have found out that he/she had suffered a significant injury possibly related to his/her treatment. GV.007. v2 15

17 a court is persuaded that it is fair overall to allow a longer period. How are damages calculated? There are two elements to an award. The first recognises the pain, suffering and loss of amenity caused by the injury. It varies from about 4,000 for an unnecessary laparotomy scar, through about 140,000 for blindness to about 200,000 for quadriplegia. The remainder of any award is wholly related to the financial losses and extra expenses caused by the injury. What is my role? Your role is crucial. Unless we have your views and know what you would say at trial about all the relevant factual issues we cannot accurately work out the chances of the claim succeeding. That would increase the risk of paying too much to settle the claim or going to trial and losing. We need to know: what you did; the reasoning behind any decision you made; what your notes say. In some claims we may also need you to think through what you would have done in a hypothetical situation. Remember that what you think goes without saying may well not be the same for someone outside your field. Please explain even the obvious. Why does it take so long? Lawyers are very conscious that the time taken to resolve claims must seem particularly odd to clinicians who have to deal with major problems in minutes or hours. The reasons for the time taken include: the need for the prognosis to stabilise before an accurate valuation can be made. This can take years where the claim is on behalf of a young child with a brain injury. other calls on the time of medical experts. There are frequently issues which cannot be resolved without both parties having had independent expert advice, and it is not unusual for respected experts to have an eight twelve month waiting list. It may also take time before a trial date can be allocated. How many claims go to trial? Very few - Most claims are either settled by negotiation or mediation for whatever proportion of their full value matches the chances of success of trial. GV.007. v2 16

18 Appendix B CNST MEMBER NAME: TRUST CONTACT: CLAIM REPORT FORM MEMBER NO: TRUST REFERENCE: INJURED PARTY DETAILS TITLE FORENAM SURNAM Gender Male / Female Occupation Date of Birth NI Number Claimant Name Claimant s Solicitor Name Date of Death Injured party same as Claimant Relationship to Patient Solicitor s Postcode Yes / No FRS12 DATA Estimate of Quantum Estimate of Claimant Costs Share % Probability LOW MED HIGH Estimate of Defence Costs Estimated Settlement Date (Financial Year of FUTR) 08/09 09/10 10/11 11/12 FUTR Other Party(s) % Involvement CLAIM DETAILS Hospital Name Stage of Claim + Date Incident Date Description of Incident Notification Date PRIVATE PROVIDER INVOLVEMENT Company Name Facility Name Contract Details GV.007. v2 17

19 PP Contact PP Reference RISK MANAGEMENT Location Cause Speciality Injury GV.007. v2 18

20 Appendix C RISK POOLING SCHEMES FOR TRUSTS (RPST) There are two separate schemes covering non-clinical risks, the Liabilities to Third Parties Scheme (LTPS) and the Property Expenses Scheme (PES), are known collectively as the Risk Pooling Schemes for Trusts (RPST). NHS bodies may join one and not the other if they wish. Both schemes date from 1 April 1999, and cover begins from that date, or from the date when the NHS body joined the scheme where that is later. LTPS provides cover for: Employers' liability claims, from straightforward slips and trips in the workplace to serious manual handling, bullying and stress claims. Public and products liability claims, from personal injury sustained by visitors to NHS premises to claims arising from breaches of the Human Rights Act, the Data Protection Act and the Defective Premises Act. Defamation, professional negligence by employees and liabilities of directors. PES provides cover for: First party losses such as theft or damage to property. Detailed information on the scope of the schemes is set out in the LTPS and PES rules, while the LTPS reporting guidelines and RPST report form set out how members should report claims to us. LTPS/PES claims are subject to excesses, with member bodies responsible for handling and funding below-excess claims themselves. They can, however, ask the NHSLA to handle these claims for them for a handling fee. Like CNST, LTPS/PES contributions are calculated on an annual basis using actuarial techniques. Discounts are available to those who meet the relevant risk management standards. GV.007. v2 19

21 Appendix D LTPS CLAIMS REPORTING GUIDELINES For use by all Members of the Liabilities to Third Parties Scheme [LTPS] 1 Introduction 1.1 These guidelines are intended to assist Members in processing all categories of claim under LTPS, but predominantly EL and PL claims. Members should be familiar with the LTPS Rules and nothing in these guidelines is intended to override the Rules. The LTPS Rules can be downloaded from the NHSLA website at These guidelines provide a framework within which Members should report new claims to NHSLA. 1.3 Receipt by a Member of an EL or PL claim involving personal injury will usually trigger the Pre-Action Protocol for Personal Injury Claims. The Protocol sets in train a timetable that requires responses within specific timescales. 1.4 Claims should be reported using the standard LTPS Incident Report Form which can be found on our website at If a Member wishes to claim under the Scheme it is imperative that there is reliable and complete information sent to the NHSLA at the first opportunity. 1.5 Where delays occur and the required information is incomplete or not readily available, delivery of the specific responses required by the Protocol timetable may be compromised. Increases in costs that arise from delays attributable to the Member are not covered by the Scheme. 1.6 Members should have effective and integrated processes in place for complying with relevant Health & Safety legislation, together with proper measures through line management to ensure the earliest recording, investigation and assessment of incidents, irrespective of the likelihood of a formal claim. 1.7 Claims should pass to NHSLA via a nominated representative, who should have a thorough understanding of the claims management process. 1.8 Where a claim is being made under the Scheme, NHSLA authorisation is required before admissions are made and/or any compensation offered. GV.007. v2 20

22 There is no obligation under the Scheme for Members to be granted assistance where admissions and offers have been made by the Member in the absence of NHSLA authorisation. 2 Contact with NHSLA Members may contact the NHSLA non-clinical claims team at: 1 st Floor Napier House 24 High Holborn London WC1V 6AZ DX 169 London Fax: The current Team Leaders are: Susan Georgiades (Tel: ) - Members A to M David Duguid (Tel: ) - Members N to Z The LTPS Scheme Manager is Steve Chahla (Tel: ) More local contact is via the Member s allocated Claims Inspector, where that person has been instructed to conduct investigations on site. A more detailed NHSLA contact sheet circulated to all Members on a quarterly basis. 3 When should a claim be notified to NHSLA? 3.1 Members are required to report claims upon receipt of a formal Letter of Claim, where the total cost will approach or exceed the applicable excess. The standard excesses applying under LTPS are: 10,000 Employers Liability claims 3,000 Public Liability claims Members should bear in mind that the excess applies to the total value of the claim; that is, damages, plus any Claimant and Defence solicitors costs. 3.2 All reportable EL claims must be accompanied by the documents on the standard disclosure list applicable to the particular type of claim. GV.007. v2 21

23 There is a link to the NHSLA Disclosure List on our website please see Claims/Schemes/RPST/NHSLADisclosureList.doc. 3.3 NHSLA offers a handling service for claims falling within the excess, subject to a handling fee which currently stands at 200. The handling of such claims by NHSLA remains subject to the Scheme Rules. The handling fee itself is subject to revision from time to time. 3.4 NHSLA also encourages Members to report serious adverse incidents and/or serious adverse outcomes representing a significant litigation risk prior to an actual demand for compensation being made. These may come to light through: - Normal in-house Incident recording/investigation - Complaints which look highly likely to lead to claims - Other matters identified through Risk Management processes 3.5 NHSLA seeks early notification particularly where the following features arise: - Fatal incidents - MP involvement - Media attention - Human Rights issues - Multi-party actions - Multiple claims from a single cause - Novel, contentious or repercussive claims 3.7 Once the claim has been notified under LTPS, the Scheme Rules require that the following also be notified to NHSLA immediately upon receipt: - Any further correspondence from or on behalf of the Claimant (particularly any letters triggering time limits under the Pre Action Protocol for Personal Injury Claims for example, Part 36 Offers to settle or nomination of medical experts) - Any proceedings or written notice thereof 4 Action in response to a notification of a claim for compensation 4.1 The Protocol requires Claimants to send a formal Letter of Claim containing a clear summary of the facts upon which the claim is based, including the main allegations of negligence, the nature of the injuries, present condition and prognosis, and any financial loss. 4.2 The Letter of Claim triggers specific time limits, indicating that the legal process has commenced, and there will be 3 months to respond formally. GV.007. v2 22

24 The Letter of Claim must be acknowledged within 21 days. Members should do that, indicating that the matter has been reported to NHSLA. 4.3 There are also incidents, not necessarily the subject of a formal Letter of Claim, that require Members 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 exhaustive and if Members are in doubt as to whether an incident is serious they should seek advice from the NHSLA. 4.4 Members should try as far as possible to carry out the following steps immediately upon receipt of a Letter of Claim: Collect and collate records and any other information relating to the incident and the person(s) involved, including incident reports, complaint files and any data held on computer files which are not routinely printed and stored in hard copy format Identify all relevant personnel and their contact addresses and telephone numbers. 4.5 Members should be aware that reports which do not have as their sole or dominant purpose actual or prospective litigation are likely to be discloseable. This means that their content ought to be factual and avoid opinion and supposition as far as practically possible. The interpretation of such reports may amount to an admission of liability but this should not inhibit Members from dealing properly and effectively with any remedial action that may be indicated. 4.6 Matters with no prior record or incident investigation Where a Letter of Claim relates to an incident not previously recorded and/or not previously internally investigated by the Member immediate action should be taken to implement the appropriate investigations. The urgency arises because of the Protocol timescales (see Sections 1.3 and 4.2) for delivering a reasoned response to the Letter of Claim. The usual investigations in respect of a previously unrecorded incident and any additional investigations arising directly from the Letter of Claim should proceed urgently as a single process. GV.007. v2 23

25 Note: documents arising from investigations with such a dual purpose are likely to be discloseable in subsequent litigation (see Section 4.5) 4.7 The following basic documentation should be sent in with all such cases: - - Covering letter clearly indicating a new notification is attached - Completed LTPS Incident Report Form - Copies of the correspondence from the claimant s solicitor - Any prior correspondence, e.g. initial letter/s of complaint - All reports of investigations into the incident - Copies of comments from supervisors and/or managers obtained as part of the initial incident investigation - Unless the Member is already satisfied that liability attaches for the incident, the documents on the standard disclosure list applicable to the particular type of claim. 4.8 NHSLA will liaise with the Trust regarding the information submitted and any further investigations required. 5 Miscellaneous 5.1 Ex-gratia payments Ex-gratia settlements offered by Members are by definition not payments based upon legal liability and are therefore not recoverable under LTPS. 5.2 Compensation Recovery Unit (CRU) The requirements of the Compensation Recovery Unit for reporting cases and obtaining certificates of benefits recoverable remain in place. For all claims made under the Scheme this task will be handled centrally by the NHSLA. Members should as far as possible try to identify and provide the National Insurance numbers of all employee or patient Claimants. 5.3 Mediation/Alternative Dispute Resolution (ADR) ADR can take one of a number of different forms, for example, a time-limited discussion. Mediation is a specific form of ADR and involves a trained mediator to facilitate settlement. The NHSLA is committed to ADR and Mediation in appropriate circumstances as a means of resolving disputed claims. Claims of relatively limited financial value, but possessing major emotional elements, for example, the death of a child, might be suitable candidates. All cases, however, may potentially benefit from mediation or ADR at any stage. 5.4 Claimant s Part 36 Offers GV.007. v2 24

26 It is possible that these may be made at an early stage, even where the first notification is a Letter of Claim. Punitive consequences may flow from offers made under CPR Part 36 which are either rejected or fall out of time. Therefore any such offer, whether or not the Member believes the terms of the offer to be valid, should be immediately reported to NHSLA by telephone and fax. This must happen as soon as the documents are received as it is extremely important to avoid delay. Members should not give any indication to the Claimant s solicitors that any such offer is valid, or that time runs from a particular date. Where such offer letters may be received in other parts of the Members operation (for example, the Chief Executive s office) staff working in these areas should be trained to recognise such offers and Members should develop a fast track to process them. 6 Scheme Indemnity 6.1 NHSLA is aware that there is anxiety among Members surrounding possible reservation of the Authority s rights under the Scheme. 6.2 Whilst occasionally that course of action has proved necessary, it is only in the rarest of circumstances that NHSLA would decline to indemnify. 6.3 NHSLA recognises that a judgment has to be made when deciding whether or not to report a case in accordance with section 3 of these guidelines. 6.4 Where there have been delays in reporting NHSLA will only raise the issue where there has been prejudice caused by identifiable additional case cost. 6.5 It is not possible to be prescriptive as to every circumstance which may give rise to prejudice and NHSLA will consider each set of facts individually. 6.6 Members are encouraged to speak to the Authority if there is any doubt about particular circumstances and whether they should be reported or not. GV.007. v2 25

27 Appendix E LTPS CLAIM REPORT FORM Please return to: NHS Litigation Authority Non-Clinical Claims 1 st Floor Napier House High Holborn London WC1V 6AZ (DX 169 London) Please complete fully in BLOCK CAPITALS 1. MEMBER DETAILS Membership Number: Name and Address: Telephone Number: Fax Number: 2. INJURED PARTY DETAILS Full Name of Injured Party Address National Insurance Number Occupation Martial Status Date of Birth GV.007. v2 26

28 IF THE INJURED PARTY WAS AN EMPLOYEE, PLEASE COMPLETE SECTIONS 3 AND 4. OTHERWISE GO STRAIGHT TO SECTION EMPLOYERS LIABILITY CLAIMS Date of commencement of employment: For the 13 weeks prior to the accident (or lesser period employed) please state: i. Gross earnings and Pay Band ii. Income Tax deducted iii. NI benefits deducted iv. Net Earnings Please state any periods of absence in the 52 weeks prior to the incident, with causes, and whether paid or unpaid (supply details on a separate sheet if necessary) Nature of injuries (please give as much detail as possible) If removed to hospital or otherwise medically examined, please provide the name and address of the hospital or doctor Please state the date on which the employee: i. Returned to work: GV.007. v2 27

29 ii If not yet returned, when are they expected back? 4. INCIDENT CIRCUMSTANCES Date and time: Location. Did the incident happen in a PFI developed area? When was the incident first reported by the Claimant? Who was it reported to? Please state what happened. Does the Claimant s line manager accept the Claimant s version of the events as recorded on the Incident Form as being correct? Were there any witnesses to the incident? If so, please provides names and addresses and state whether they were employed by you? Please supply any additional information on the following page and sign the Declaration. Please do not enter into any correspondence with the injured employee or his/her representatives other than to acknowledge the Letter of Claim. GV.007. v2 28

30 5. ANY ADDITIONAL INFORMATION 6. DECLARATION Name: Signature:.. Status of Signatory:. Date:... Please return this form to NHSLA at the address at the top of the first page and make sure that you have: (a) (b) Signed the Declaration and enclosed the Claimant s Letter of Claim Where the Claimant is an employee, enclosed all the documents on the NHSLA Disclosure List applicable to the particular type of claim. GV.007. v2 29

31 Appendix F Pre-Action Protocol for the Resolution of Clinical Disputes 1. This protocol accompanies the Civil Procedure Rules introduced on 26 April 1999 as part of a package of reforms to improve the way in which civil litigation was conducted. Lord Woolf had identified numerous problems with the old system, including delays, high costs, unequal access to justice and inappropriate prosecution / defence of cases. 2. The civil Procedure Rules introduced a strict regime for the conduct of civil claims, including clinical negligence. The key elements are openness from an early stage and timeliness in response to claimant s concerns. 3. When obtaining copies of health records, the requesting party should complete the Law Society and Department of Health approved standard form providing sufficient information to the healthcare provider that there has been an adverse outcome to treatment. It should also specifically mention which records are required. A signed form of authority for the release of the records should be provided and the copies should be made available within 40 days of the request and at a cost not exceeding those permissible under the Data Protection Act If, following the receipt of the health records and any relevant expert advice, it is thought that there are grounds for a claim then a Letter of Claim should be sent to the healthcare provider as soon as practicably possible. 5. 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 also describe the patient s injuries, present condition and prognosis. Any financial loss incurred by the patient should also be outlined. The claimant may make an offer to settle at this stage. 6. A chronology of events is helpful, however sufficient information should be provided to enable the healthcare provider to commence their own investigation and place a value on the claim. 7. The healthcare provider should acknowledge the Letter of Claim within 14 days (21 days for Employment and Public Liability) of receipt and identify who will be dealing with the matter. 8. Within three months of the date of acknowledgement the healthcare provider should provide reasoned response stating whether or not the claim is admitted, in whole or in part (such admissions are binding and cannot be retracted at a later date). If the claim is denied than an alternative explanation must be given. 9. Any documentation referred to must be disclosed with the response. GV.007. v2 30

32 10. Where an offer of settlement has been made by the claimant, then a response to that offer should be made. The defendant, supported by reasoning and /or supporting medical advice can make a counter-offer. Proceedings should not be issued within three months of the Letter of Claim, unless there are limitation problems, or if a reasonable period is agreed by both parties. GV.007. v2 31

33 Appendix F WHAT TO DO IN THE EVENT OF A CLAIM Staff member becomes aware of a claim or potential claim, they inform line manager. Line manager informs Governance facilitator Risk and Claims. Checks are carried out to ensure that claim is the responsibility of MCH, if not a letter is sent to the originator. If so the relevant associate director is informed The claim is logged on DATIX as a formal claim or potential and a paper claim file is opened Governance facilitator contacts Service manager to obtain relevant documentation i.e. incident record, health records, sequence of events. Root cause analysis to be undertaken by the appointed investigating officer Governance facilitator notifies the NHSLA of claim and seeks advice on what is required NHSLA will manage the claim unless otherwise specified in the Claims procedure. The relevant documentation is completed and sent to the nominated claims handler at the NHSLA Associate director / service manager / Governance facilitator liaise to ensure that the appropriate support is provided to interested parties e.g. staff involved, and the key stages reached are communicated to all relevant parties Monthly reports are produced on all ongoing claims and potential claims and are discussed at the Risk Management Sub Committee Service managers are to ensure that all staff involved in the case are supported throughout the process and are advised of the outcome of the claim and that lessons learnt are shared and implemented where required GV.007. v2 32

34 GOVERNANCE SCHEDULE (to be completed in all cases for new and revised policies, procedures, protocols, guidance and patient information leaflets) 1. Title of Document Claims Procedure Purpose of this document and To detail MCH s process for handling 2. specific risk reduction covered claims. Litigation risk. Policy/procedure etc. category Risk Working group/committee consulted with: Service leads Working group/committee approving this document: Committee ratifying this document What other groups/positions have been consulted with Policy/procedure etc. required by Other organisations covered by this document: Impact on other policies, procedures, protocols, guidance, patient leaflet Detail staff groups this document applies to: Service Managers Forum Quality Committee None MCH, NHSLA None Claims Investigation policy. All staff Detail any resource/training requirements of document. Detail how and where these will be implemented and by whom: Legal advice obtained (if YES give comments) Equality Impact Assessments YES 14. Completed (Assessment forms available from HR dept.) 15. Public Involvement NO 16. Detail governance checks made and name of person responsible for proof reading the document Root Cause Analysis Training YES NHSLA requirements incorporated GV.007. v2

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