GLOUCESTERSHIRE HOSPITALS NHS FOUNDATION TRUST

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1 GLOUCESTERSHIRE HOSPITALS NHS FOUNDATION TRUST MAIN BOARD - JANUARY 2015 LEGAL SERVICES REPORT 1 Executive Summary 1.1 The Legal Services Report for Gloucestershire Hospitals NHS Foundation Trust is submitted to the January 2015 board. The report comprises information for the period 1 st July 2013 to 30 th September 2014, in respect of claims, litigation and Inquests. 1.2 This report contains an analysis of claims and inquest data in the period 1 st July 2013 to 30 th September 2014 and where appropriate compares available data from previous years. These five quarters have been selected as they represent the data available for analysis from the NHSLA to date. 1.3 The purpose of the Legal Services Report is to feed the data provided back into the organisation and to provide information on lessons to be learned from claims, litigation and HM Coroner s Inquests. This is to ensure that the Trust develops an ability to learn from claims, litigation and HM Coroner s Inquests with the aim of reducing both harm to patients and litigation costs. 1.4 This report also provides an overview of the work undertaken by the Legal Services Team and their co-ordinated approach to working with other departments and staff members integral to improving patient safety and quality of care. 2 INTRODUCTION 2.1 The Legal Services Department is responsible for the management of: Claims arising from Clinical Negligence Claims arising from personal and public liability Ex-gratia payments for compensation Preparation for and legal representation at all HM Coroner s Inquests Disclosure of patient identifiable information to individuals and all authorised third parties Freedom of Information service Data Protection lead Contract with Trust solicitors (Beachcroft) Healthcare Advice to clinicians and services, and strategically for the organisation when required. Contact with Police, Social Services, Information Commissioners office, and advice on dealings with other regulatory bodies (NMC, GMC, Parliamentary Health Service Ombudsman) Support for all staff involved in these processes 2.2 Although the above are the main areas of work, this list is by no means exhaustive. The Legal Services Department provide advice on a wide range of legal issues, including consent to treatment, disclosure, social services and police matters. 2.3 The Legal Claims Manager holds a personal delegated authority from the NHS Litigation Authority in claims management. All claims under this delegated authority are managed by the Legal Services Department and the majority of claims above this authority remain with the Department, if and until claims are formally litigated. 2.4 Where legal advice cannot be provided in-house (beyond the expertise of the department) the Head of Legal Services is responsible for instructing Trust solicitors, Legal Services Report Page 1 of 10

2 ensuring that legal costs are minimised and proportionate to the particular matter in hand. 3 Clinical Negligence Claims 3.1 All clinical negligence claims brought against the Trust are managed in accordance with the Claims Policy and the terms and requirements of the National Health Service Litigation Authority, Clinical Negligence Scheme for Trusts (CNST) Reporting Guidelines. 3.2 CNST is a contributory scheme which funds all costs associated with claims that have been referred to the NHSLA. 3.3 The Trust s Claims Manager holds a personal delegated authority from the NHSLA, enabling the investigation and settlement or defence of all claims under that authority. The investigation of and response to pre-action claims that exceed this delegated authority generally remain the responsibility of the Legal Claims Manager, although appropriate authority is sought from the NHSLA. Organisations without this delegated authority generally have their claims investigated and responses provided by the NHSLA s panel solicitors. As such defence costs for Trust s without this delegated authority are significantly higher and time to resolution of claims longer. 3.4 The number of claims received into the department has steadily increased over the last five years. The Department saw a significant increase in the latter stages of 2012/2013, however this was due to a significant change in funding arrangements rather than a noticeable trend in any specific area of alleged negligence. Prior to 1 st April 2013, Success fees and After the Event Insurance Premiums were recoverable from the Trust. A change in law resulted in those success fees and After the Event Insurance premiums entered into after 1 st April 2013, no longer being recoverable from the Trust. Therefore many claims were issued in the run up to this change so as to ensure that the previous, more advantageous, funding arrangements applied to claimant s solicitors. 3.5 The graphs below depict the numbers of claims in the most common areas of litigation over the last five years. The member type, depicted in red, refers to the Acute Trust status and type of service offered. The light blue line depicts the position nationally. The dark blue line depicts our Trust position and the yellow line depicts the regional position. This information is provided by the NHS Litigation Authority: Legal Services Report Page 2 of 10

3 The number of general surgical claims have been steady, between four and six per annum between 2009 and This graph indicates an increase from two reported claims in 2009/2010 to seven in 2010/2011, the latter being above the national average. Review of gynaecology claims does not suggest any trend in the claims reported in this period. The number of claims has steadily reduced since 2011 to bring them just above the national average in 2013/2014. Legal Services Report Page 3 of 10

4 The number of Orthopaedic Claims is noted to be greater than the national average and with a marked increase between 2013 and We are aware that missed fractures are a common theme in negligence claims. These arise both in the Emergency Department and the Orthopaedic Department. We are working with the Emergency and Radiology Departments to reduce litigation in this area by improving radiological interpretation through the roll-out of a workflow system. See NHSLA Safety Improvement Plans at Appendix 2. The dark blue line depicts the Trust s number of Ophthalmology claims. They confirm numbers to be low between 3 and four per year. We have noticed an increase in litigation arising from difficulties experienced with excessive time to follow up in Ophthalmology clinics. Legal Services Report Page 4 of 10

5 Summary of Clinical Negligence Cases Report Quarter New Closed Number of cases where damages paid Total value of damages Total value of Defence Costs Total value of Claimant s Costs Q1 2013/ , Q2 2013/ , Q3 2013/ , , Q4 2013/ , , , Q1 2014/ , ,000 Q2 2014/ , , Q3 2014/ , , Those cases that have resulted in the payment of damages are summarised below, by Division: Medical Division ( Scheduled and Unscheduled Care) Delay in diagnosing a scaphoid fracture x 2 Alleged failure to prevent the deceased falling prior to discharge Failure to note abnormal test results and admit for further investigation and treatment, leading to inappropriate discharge leading to death. Failure to diagnose and treat testicular torsion Failure to diagnose and treat pulmonary embolism Delay in diagnosing and treating Lisfranc fracture Delay in providing pain relief Delay in diagnosing and treating achalasia Delay in diagnosing cardiac condition Legal Services Report Page 5 of 10

6 Surgical Division Damage to artery during knee surgery resulting in need for further surgery and reduced mobility Delay in diagnosing perforation following endoscopy Delay in diagnosing damage to artery during surgery Delay in diagnosing spinal cord compression Delay in removing surgical drain Alleged erroneous cut to the tendon during right osteotomy resulting primary tendon repair Failure to remove suture material from the umbilical hernia site Delay in performing CT scan of the elbow, leading to delay in offering surgery Incorrectly sized component used in hip surgery leading to the need for removal and further surgery Delay in proceeding to surgery to remove necrotic bone to treat the osteomyelitis and failure to return the Claimant to theatre thereafter to remove further necrotic bone. Alleged failure to use appropriate fixation technique during surgery to reduce and fix a wrist fracture resulting in an additional operation and ongoing impairment of function and sensation Delay in diagnosing and removing kidney tumour Alleged delay in diagnosis of a calcaneal fracture to the foot Failure to prevent a fall and delay in diagnosing internal injuries subsequently Womens and Childrens Division Delay in performing a hysterectomy and diagnosing/treating cervical cancer Failure to detect ectopic tissue had escaped from fallopian tube into the abdomen during laparoscopy Failure to diagnose ovarian tumour Inappropriate and inadequately performed hysteroscopy, resulting in perforation of the uterus Intra -operative difficulties during gynaecological surgery resulting in unexpected and uncontrollable haemorrhage Delay in diagnosing and treating endometriosis Alleged substandard monitoring following delivery, resulting in death at one day old Fall from bed following caesarean delivery Specialties and Diagnostics Inappropriate storage of deceased body 4 COMPLAINTS LEADING TO LITIGATION Of the successful claims referred to above, eight (24%) were previously investigated through the NHS Complaints Procedure. The Legal Services Department have seen an increase in the number of complaints that proceed to litigation. A factor affecting this may be ease of accessibility to litigation processes and also as a consequence of our approach to being open and honest with complainants. 5 GROUP LITIGATION METAL ON METAL ORTHOPAEDIC IMPLANTS The Legal Services Department is currently handling 7 legal claims arising from the historical practice of hip replacement surgery combining head components from one manufacturer with stem components from another. It is being claimed that combining components from different manufacturers results in excessive wear and/or corrosion and patients developing an adverse reaction to metal debris. A number of NHS Trusts and clinician s in the private sector are facing such legal claims. The NHS LA has instructed legal firm DAC Beachcroft on behalf of all NHS Trusts involved and the Legal Legal Services Report Page 6 of 10

7 Services Department is working alongside DAC Beachcroft. A number of legal arguments are being put forward by Solicitors representing patients as to why NHS Trusts and private clinicians should be responsible for the adverse outcomes of these patients. We are currently waiting for independent expert advice before an assessment of legal liability can be made. 6 EMPLOYER and PUBLIC LIABILITY CLAIMS The Trust is a member of the NHSLA s Liability to Third Parties Scheme (LTPS). This is a contributory scheme which provides financial assistance to Trust s in meeting damages and solicitors costs in respect of employers and public liability claims. Unlike CNST the Trust is responsible for meeting the first 10,000 for employer s liability claims and 3,000 for public liability claims (including defence costs in cases successfully defended). The Legal Services Department investigate all claims for employers liability and public liability, reporting their findings and recommendations for settlement or defence. In August 2013, the NHSLA created a new portal for Employers Liability and Public Liability Claims. This resulted in Trust s having a limited time to undertake investigations, prior to providing our response. Historically Trusts had a three month period to undertake an investigation. Under this new Portal, investigations have to be completed within 30 days, in order to avoid significant cost burdens in claims that proceed outside of the portal and into litigation. Currently we are able to meet this new deadline. The Trust has 31 open claims for personal injury/employers liability. The majority of cases where damages have been paid in the last three years relate to the following: Slips/Trips and Falls Needlestick Injuries Injuries by a patient Injured lifting/moving or handling A trend in the numbers of claims relating to needlestick injuries has been identified. In response to this, the Safety Department have issued new guidelines for the reporting and investigation of such injuries. Most notably managers are advised to seek witnesses to alleged injuries and to ensure that the needles are kept as evidence. An article in Outline also highlighted the dangers of needlestick injuries and staff are being encouraged to use safer sharps bins. 7 H M CORONER S INQUESTS The Legal Services Department has been dealing with all inquests for the Trusts for 14 years. We have seen a rise in the annual number of inquests involving the Trust over those years, with an average of 227 inquests per year over the last 6 years. The Coroner investigates all deaths which (at the time of death) are judged to be either unnatural or unexplained. For all such reported hospital deaths, the Coroner will notify Head of Legal Services (HLS) when the death is to proceed to an inquest. At this point, a full investigation is commenced by the legal department to identify staff who treated the patient and obtain statements and relevant documents from them, directly assisted by HLS. If the inquest proceeds to a public hearing, the legal department has an established system of personal preparation and support for the witnesses called to attend. The HLS represents the Trust at all inquests where staff are called to attend, and at any of the Legal Services Report Page 7 of 10

8 frequent intermediary case management hearings. In this way there is a significant cost saving to the Trust by not involving Trust solicitors. Where a death is contentious, or where a litigation case or complaint is also proceeding, the Head of Legal Services will meet with the claims, risk and complaints department to coordinate provision of information to the Coroner. Of particular value to the Coroner are the serious untoward incident reports which demonstrate the Trust s internal investigation and remedial process, and communication with the family. The Legal Services Department has also seen a noticeable increase rise in the number of Inquests where the families are legally represented. This is largely due to the anticipation of a claim or negligence following conclusion of the Inquest. The Claims Manager and Head of Legal Services liaise closely and where possible and appropriate will endeavour to settle claims for negligence, ahead of contentious inquests. Families are able to claim the costs of legal representation at Inquest if they succeed in a claim for negligence. It is therefore in the interest of the patient s family for any necessary admissions to be made ahead of an Inquest, and also limits the costs associated with any later claim for negligence. There are a number of themes that have previously been addressed by H M Coroner. These include the following: Clinical intervention not recorded in the notes Observations not recorded in the notes Standard of medical record keeping Falls risk assessments not being completed or not documented Poor communication with relatives At the conclusion of every inquest, the Coroner has a power to consider issuing a Prevention of Future Deaths report. This takes the form of a letter to the Chief Executive in which the Coroner identifies that during the course of an inquest the evidence given revealed matters giving rise to concern that there is a risk that future deaths will occur unless action is taken to address the concern. The Coroner issued two Prevention Future Death Reports between July 2013 and September The Coroner requires the Trust to explain what actions will be taken to address the risk identified, or if none is to be taken, why that is. The first report concerned a baby death for which no medical cause was ever established, but the Coroner was dissatisfied with several points of practice in Maternity Services, and wrote to the CQC requesting an inspection of the unit. The CQC did inspect shortly after and reported no concerns. The Trust also made several policy changes and introduced those changes through staff training. The second report concerned a death following day case surgery. The Coroner had concerns about the lack of provision of a weekend Consultant ward round, and the absence of a formal process by which to request an urgent CT scan. In response the Trust explained that most specialities offered weekend Consultant ward rounds but it was not possible for this to take place in all parts of the Trust, and that there was, in fact, a protocol for requesting emergency CT scans. In July 2013 changes were made to the Coroner s Rules. One of the main changes is the requirement for a Coroner to conclude an inquest within 6 months, or report to the Chief Coroner why that cannot be done. This timescale creates a considerable pressure for the legal department in tracing doctors who have left the Trust and obtaining the required statements. The Coroner also now has to give consideration to the whole of the patient s journey rather than just the events leading to the death. In practice, this can result in more detailed responses from a larger number of staff. Legal Services Report Page 8 of 10

9 The following table confirms the number of Inquests of which we have been notified and those where representation has been required: Quarter Inquests Notified Inquests Attended Q1 2013/ Q2 2013/ Q3 2013/ Q4 2013/ Q1 2014/ Q2 2014/ HEALTHCARE ADVISORY WORK The Head of Legal Service advises on all healthcare related matters, particularly those involving individual patients, for example, issues relating to consent for examination or treatment, mental capacity, confidentiality and treatment decisions, including withdrawal of treatment. Advice given reflects the law, but is offered in a practical, operational way enabling care to continue but with clinical staff well informed about the legal limitations. This is also provided as an on call service for urgent or emergency situations 7. RISK MANAGEMENT The Legal Services Department has close links with the Corporate and Divisional Risk Management Teams. A representative from the Legal Services Department attends the monthly Safety, Experience and Review Group feeding back on inquests and claims that have been settled and admissions that have been made, in the preceding month. The group discuss the reasons for settlement together with other risk related issues that have arisen and Divisional Risk Managers feedback to Divisions with lessons to be learned from those claims. The Legal Claims Manager works closely with the Trust s Risk Manager in the investigation of Serious Untoward Incidents. Reports prepared from the Serious Incident Investigation are key to both the Trust s approach to Inquests and subsequent claims and must be clear, concise and consistent. Where litigation is anticipated following a Serious Incident, the Legal Claims Manager has and continues to meet with patients and their families, providing open and honest feedback and appropriate channels for support. The Legal Services and Risk Management team endeavour to promote an open and honest culture, at the earliest given opportunity. The Head of Legal Services and Legal Claims Manager regularly provide training sessions to clinical and nursing staff on lessons to be learned from claims and inquests. 8. DUTY OF CANDOUR The Legal Claims Manager forms part of the Duty of Candour Project group and is working with the Director of Safety, Consultant and Nursing leads to design an efficient and effective process for managing our statutory requirements. 9. SIGN UP TO SAFETY The Board will be aware that our Trust has signed up to participate in a national programme aimed at improving patient safety, Sign up to Safety. As part of this programme, the Legal Claims Manager has analysed the Trust s trend analysis provided by the NHS Litigation Authority and identified themes arising from both our high value/low volume claims and our high volume/low value claims. The Legal Claims Manager has worked with key staff in the Emergency Department and Obstetric Division in compiling Safety Improvement Plans that are intended to reduce Legal Services Report Page 9 of 10

10 litigation in these key areas. Please refer to Appendix 1 and Appendix 2 for copies of driver diagrams that explain the safety improvement plans. In summary funding is sought from the NHSLA to improve CTG interpretation and interpretation of radiology. 10. RECOMMENDATION The Board is invited to note this report. Author: Presenting Director: Jo Hunt, Legal Claims Manager Andrew Seaton, Director of Safety Date January 2015 Legal Services Report Page 10 of 10

11 Gloucestershire Hospitals NHS FT Sign up to Safety Improvement Plan Missed radiological pathology APPENDIX 1 Establish electronic work flow system Electronic communication between ED & Radiology Appoint staff champions Provide training time Speed of radiology reporting Establish hot reporting To reduce missed radiological and pathology prior to discharge in ED by 25% Improve ultrasound effectivness Improve diagnostic equipoment and availability Enhance education palcing the patient at the centre of learning Provide accesable education resources Develop training based on patient story and hard data Measurement Establish measurement data process and definitions (see plan)

12 Gloucestershire Hospitals NHS FT Sign up to Safety Improvement Plan CTG Interpretation

13 Gloucestershire Hospitals NHS FT Sign up to Safety Improvement Plan CTG Interpretation