CLAIMS HANDLING POLICY & PROCEDURE CLINICAL NEGLIGENCE, EMPLOYER/PUBLIC LIABILITY AND PROPERTY EXPENSES SCHEME CLAIMS. General Policy No.

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1 CLAIMS HANDLING POLICY & PROCEDURE CLINICAL NEGLIGENCE, EMPLOYER/PUBLIC LIABILITY AND PROPERTY EXPENSES SCHEME CLAIMS General Policy No. 21 Applies to: Committee for Approval Community Trust Board, and Heads of Service. Quality and Governance Committee Date of Approval 16 April 2012 Review Date 3 October 2014 (or sooner if legislation change) Name of Lead Manager Impact assessment Sylvia Reynolds Claims Manager Not Required Version 1

2 GLOSSARY National Health Services Litigation Authority NHSLA Clinical Negligence Scheme for Trusts..CNST National Health Service Executive NHSE Letter of Claim. LC General Medical Council GMC United Kingdon Central Council UKCC Civil Procedure Rules..CPR Employer Liability.EL Public Liability PL

3 INTRODUCTION EL (96) 11 Clinical Negligence and Personal Injury Claims Handling issued by the National Health Service Executive (01/04/96) requires that each Trust Chief Executive ensures that their Trust has a clear policy on the handling of clinical negligence and personal injury claims. Wirral Community NHS Trust, through NHS Indemnity, accepts responsibility for the actions and omissions of its staff. The Board of Directors is committed to the timely and effective handling of any claim or allegation of clinical negligence or personal injury and will follow the requirements and recommendations of the NHS Executive (NHSE) and the NHS Litigation Authority (NHSLA) in the management of claims. Wirral Community NHS Trust recognises and accepts its responsibility to provide a safe and healthy work place and environment for its employees and patients. Effective claims handling is essential in this respect as information gathered throughout the claims handling process is used to identify areas where care, practice or facilities have fallen below the required standard. Thus good claims handling is a fundamental tool of risk management. Identification of areas where improvements in service can be made will contribute to the promotion of the highest possible standards of care and facilitate wider organizational learning. Wirral Community NHS Trust acknowledges the philosophy that every claim is a learning opportunity for Wirral Community NHS Trust and that staff will review claims to improve patient experience and contribute to a safer environment. Any claims made will be investigated in an objective and thorough manner with the aim of uncovering facts and identifying risks which require active management. Wirral Community NHS Trust has a Risk and Governance Group linking adverse events, complaints and claims. Every member of staff is expected to co-operate fully, as required, in the assessment and management of each claim. PURPOSE This document describes the system and processes in operation in Wirral Community NHS Trust relating to the handling of claims under the NHS Litigation Authority Schemes. The policy and procedure refers to claims made for compensation by or on behalf of patients with respect to injury or harm caused as a result of clinical negligence. Such claims will be handled through the Clinical Negligence Scheme for Trusts (CNST). It also relates to claims made by or on behalf of employees or members of the public with respect to injury or harm caused during the course of their employment or visit to the Wirral Community NHS Trust premises. These non-clinical claims will be handled through the Liabilities to Third Parties Schemes (LTPS). The policy and procedure also covers claims made through the Property Expenses Scheme (PES) by Wirral Community NHS Trust with regard to damage incurred to Trust property. The policy and procedure does not cover claims by patients, staff or visitors for lost or damaged property or any other requests for ex-gratia payments. Such claims must be made directly to the area where the loss was suffered.

4 CONTENTS 1. CLINICAL NEGLIGENCE CLAIMS Page 1.1 Identifying a claim Dealing with a request for health records Confidentiality Support Mechanisms for Patients/Carers and Staff Under taking a Preliminary Analysis Reporting potential claims to the NHSLA The Duties of Discovery Identifying the responsible Trust Establishing financial responsibility for the claim Acknowledging a new letter of claim Responding to a request from a solicitor to examine the records Entering the claim onto the claims database Reporting to the NHSLA Investigating the claim Root Cause Analysis Tracking down staff who longer work for 6 Wirral Community NHS Trust 1.17 Taking statements Obtaining an in house expert opinion The next step Independent Sector Treatment Centres (ISTCs) Valuing the claim/assessing quantum Compensation recovery unit Conditional Fee Agreements Negotiating with the claimant/representative (mediation) Working with Wirral Community NHS Trust legal advisors Claimant s Part 36 offers Statement of Truth Maintaining proper view of claims Indemnity Applications for Standard Disclosure Communication Communication with Primary Care Trust Board Communication between NHSLA and PCT Involving External Communications External communications Remedial action EMPLOYEE/ PUBLIC LIABILITY CLAIMS AND PROPERTY EXPENSES CLAIMS 2.1 Acknowledging the letter Liabilities to Third Parties Scheme Incident Report Form Property Expenses scheme report form Investigating the claim Health and safety executive report (RIDDOR) Supporting evidence External investigator Duties within the organisation Link with Incident Management and Complaints Management Internal Consultation, Approval and Ratification Process Claims Data Collection and Analysis 14

5 6. Learning from Experience Equality Impact Assessment Dissemination of the Claims Handling Policy Implementation of the Claims Handling Policy References in relation to claim handling Associated Documentation Monitoring Archiving 16 APPENDICES A Pre-Action Protocl for the Resolution of Clinical Disputes 17 B Claiming privilege from discovery 18 C Obtaining a view of the claim from the lead clincian 19 D Assessing the quantum of damages 20 E The DSS Compensation Recovery Scheme 22 F Report Forms 23 G Flow Chart Handling Claims 29 Monitoring Compliance with the Policy 30

6 1. CLINICAL NEGLIGENCE SCHEME FOR TRUST 1.1 IDENTIFYING A CLAIM A claim is defined as: Any demand, however made, but usually by the patient s legal advisor, for monetary compensation in respect of allegations of clinical negligence and/or a demand for compensation made following an adverse non/clinical incident resulting in personal injury, or any non/clinical incident which carries significant litigation risk for Wirral Community NHS Trust. The claim will usually, but not always, arrive in the form of a letter from a Solicitor on behalf of a patient, his/her representative or estate (referred to as the Letter of Claim (LC) (see Appendix A). It should be noted that if the claim is received in the format of a LC Wirral Community NHS Trust only has three months in which to respond. This is done via the NHSLA by a Letter of Response. Details of the alleged negligence and the injury it is claimed that the patient has suffered should be provided but often are not or are very brief. The letter may also ask for an early admission of liability. OTHER SOURCES OF A CLAIM MIGHT BE THE FOLLOWING: (1) a letter from a patient directly or from his/her next of kin or appointed representative (for example, where the patient is dead, a child or a person with learning disabilities); (2) a complaint through the NHS Complaints Procedure which also includes a request for compensation (note: NHSLA authorisation is required before admissions may be made and monetary compensation may be offered. In the absence of such authorisation, the NHSLA will not reimburse Wirral Community NHS Trust either for the compensation awarded, or for any the costs generated. Such payments, if made by Wirral Community NHS Trust will fall outside the CNST Clinical Negligence Scheme for Trusts and could possibly result in criticism from auditors); (3) a coroner s inquest where the standard of care in Wirral Community NHS Trust is criticised, especially where the relatives of the deceased patient have instructed lawyers for the heaing; (4) a request for health records (5) a Writ (for High Court actions) or Summons and Particulars of Claim (County Court). Note: The Claims Manager will be informed promptly of any incident/development/complaint etc., from whatever source, which suggests that legal action may result. The Claims Manager will also routinely receive lists of all reported incidents in Wirral Community NHS Trust. 1.2 DEALING WITH A REQUEST FOR HEALTH RECORDS All requests for disclosure of the health records are to be forwarded to the General Office at Victoria Central Hospital for processing. Records are usually disclosed under the Data Protection Act 1998, unless the patient is deceased whereby they will be disclosed under the Access to Health Records Act 1990 unless they were deceased prior to 1/11/91 thereby the records will be disclosed under the Supreme Court Act. There are three usual routes for these requests:- By a patient or his representiative directly (Personal Disclosure) By a solicitor requesting records in respect of a claim against another party(third Party Disclosure) Page 1

7 By a solicitors acting either to investigate or notify a claim against Wirral Community NHS Trust (Pre-Action Disclosure) Records must be disclosed within 40 days. To comply with the Data Protection Act, and the Pre-Action Protocol for the Resolution of Clinical Disputes, records must be provided within 40 days of the request and payment of the fee, (at a cost not greater than that specified by the Data Protection Act ( a maximum of 50, inclusive of copying but plus postage). When viewing records to authorise release, health professionals are asked to inform the Claims Manager if the record contains information which might possibly cause the requestor to commence a claim against Wirral Community NHS Trust. The Claims Manager will be notified by the claimant s solicitor if a request has been submitted on the pre-action protocol for when proceedings are contemplated (Woolf reforms Appendix A). If a disclaimer is not included within the request for health records, this will be sought and if not obtained, the Claims Manager will be informed as a potential claim. 1.3 CONFIDENTIALITY Related WCT policy Managing the Quality of Health Records Policy, GP6. Patient information is generally held under legal and ethical obligations of confidentiality. Information provided in confidence should not be used or disclosed in a form that might identify a patient without his or her consent. A signed authority is usually supplied by the patient, but could be from their personal representatives to disclose records. The usual age for informed consent to disclose records is from age 16. The authority to disclose records, written stating the name of Wirral Community NHS Trust or site(s) where the patient was treated, must be given for all legal requests. 1.4 SUPPORT MECHANISMS FOR PATIENTS/CARERS AND STAFF Related WCT policy Stress Management Policy, HRP29. It is important to consider not only how the claimant feels in such situations, but also those in the organisation being claimed against as this can be an extremely stressful experience. Staff will be supported by their Line Manager, in the first instance, and if required the WCT will provide confidential counseling (MEDRA) for staff involved in traumatic/stressful claims. 1.5 UNDERTAKING A PRELIMINARY ANALYSIS Once notified of a serious incident/complaint/request for records, the Claims Manager should investigate and consider whether there is a significant risk of litigation. If it is felt that there is a significant risk of litigation, preliminary analysis must be undertaken. This will usually be where there has been a serious/untoward incident, and paperwork should already have been completed and investigations undertaken by directorate management. Page 2

8 The preliminary analysis should normally be completed within 40 days of receipt of the request for disclosure of records, (but not later than 2 months after disclosure) although priority must be given to disclosure of the records. Any incident forms/copies of complaints files etc. should be obtained, and comments sought from the lead health professional involved. When seeking the comments of the health professional ask for: Synopsis and chronology brief outline of main events including details of the main parties involved Care Management problems all events where care deviated beyond acceptable limits Breach of duty record those case management problems leading to harm, and make a direct response to specific allegations made Causation harm that has directly led to loss of amenity pain and suffering. This may be difficult to determine in many cases without further investigation. Also see Appendix C for obtaining views of lead clincians. The Claims Manager should also establish: Quantum this should be estimated on the basis of information known at the time, using the Judicial Studies Board Guidelines supplemented by advice from the NHSLA. It should represent a best guess of the probable cost to the defendant at the time of resolution of the case and should incorporate figures for both claimant and defence legal costs. (See Appendix D) Claimants funding establish whether a Conditional Fee Agreement ( no win no fee ) is in place. Claimants entering into this agreement, in the event of recovering damages, will also be able to recover their reasonable insurance premium for the agreement from the defendant, and their solicitors will be entitled to a success fee, also payable by the defendant, of up to a maximum of 100% about their standard charge. Note: Pre action, there is no obligation on claimants to reveal the existence of an agreement, but the defendant should enquire. The claimant must however disclose that an agreement exists upon service of proceedings. Risk Management implications inform Risk Manager of potential claim and supply preliminary analysis. Action Plan Obtaining expert opinion on causation, obtaining a condition and prognosis report etc. This section should include assessment of litigation risk as: Low where there is no liability on the part of any party to the claim or the allegations of negligence are not causative of the outcome alleged. (nominal 25% liability). Medium where the likelihood of the claimant s success is equivocal and there is a need for further investigation. (nominal 50% liability). High where the claim is viewed as a likely settler or where there has already been an adverse expert opinion in an incident investigation. (nominal 75% liability). 1.6 REPORTING POTENTIAL CLAIMS TO THE NHSLA The NHSLA must be informed of all incidents/requests for health records/complaints etc. when a significant risk of litigation has been established and a realistic valuation of a possible claim has been made. One of four possible situations may arise:- (a) Incident report (e.g. a major obstetric mishap) graded red/serious and investigated under the healthcare governance arrangements. Those revealing a possible breach of Page 3

9 duty leading to potential large value claim (i.e damages over 250,000) must be reported as soon as possible, usually before a claim is made. (b) Claims arising from a complaints investigation where the response, on the facts, indicates that an admission of liability has been implied. (c) Requests for disclosure of records where the preliminary analysis indicates the possibility of a claim with a significant litigation risk regardless of the value. The NHSLA should be notified within two months of a request for records or sooner if the event is serious. (d) Letters of claim as the first indication of any action. The preliminary analysis should be forward to the NHSLA along with copies of all relevant documentation i.e. Covering letter; A completed CNST or ELS claim report form; Copies of the correspondence from the claimant s solicitor or the patient; Copies of comments from clinical staff obtained as part of the preliminary analysis and where relevant, the report of investigation of any adverse incident, or the formal response by the Chief Executive to a letter of complaint. Request NHSLA to advise of further action required. 1.7 THE DUTIES OF DISCOVERY Once litigation has been commenced (after Court proceedings have been issued and the pleadings stage has been completed), Wirral Community NHS Trust is under a duty to provide discovery of all documents relevant to the claim. The obligation is a continuing one, so that if, for example, additional records turn up during the life of a claim which were for whatever reason unavailable at the outset, they should be disclosed to the claimant, subject to any objection taken on the grounds of relevance and/or privilege (see Appendix B). Claims Managers therefore need to take stock of the information available in connection with a claim at the earliest possible opportunity, ensuring that every effort is made to obtain all records and protect relevant documents from being destroyed. 1.8 IDENTIFYING THE RESPONSIBLE TRUST Using the information contained in the LC (or other notification of a claim) confirm that the patient is or was a patient of Wirral Community NHS Trust at the relevant time: Always be alert to the possibility that the patient was not in fact being treated by Wirral Community NHS Trust when the negligence is said to have occurred, e.g. because he/she was the receipient of services provided on site by a neighbouring Trust. In this situation the patient or his/her representative should be asked for futher information about the circumstances of the treatment and/or the LC/claim notification should be sent on to the appropriate Trust (after informing the claimant/claimant s representative that this is planned). 1.9 ESTABLISHING FINANCIAL RESPONSIBILITY FOR THE CLAIM The date of the incident/treatment complained of will determine which NHS body will take financial responsibility for the claim. Page 4

10 1.10 ACKNOWLEDGING A NEW LETTER OF CLAIM The letter of claim must be acknowledged to the solicitors within 14 days. The NHSLA must be quoted as Wirral Community NHS Trust insurers who will be handling the case. The standard NHSLA claim report form must be included. (please see Appendix F). The letter of claim indicates that the formal legal process has commenced and that there will be three months to respond formally, provided that the letter is Protocol compliant (Woolf reforms). Do not give any indication that the letter is considered Protocol compliant, thereby enabling the NHSLA or panel solicitors to seek further time if need be. The NHSLA should be informed within 24 hours of receipt of new claim. Undertake preliminary analysis (if not already undertaken). Notify relevant Directorate Manager, Complaints, Health & Safety, Finance and Risk Manager of new claim RESPONDING TO A REQUEST FROM A SOLICITOR TO EXAMINE THE RECORDS If a claimant s solicitor wishes to view the original records, arrangements for him/her to visit the Claims Manager s office or another suitable location within Wirral Community NHS Trust. Note: (1) the visit must be supervised to ensure that no original documents are removed or defaced; (2) facilities for copying should be made available at such an appointment. Alternatively, it may be more convenient to arrange for the visiting solicitor to flag any additional documents required with Wirral Community NHS Trust agreeing to copy and send them out within a few working days ENTERING THE CLAIM ONTO THE CLAIMS DATABASE As soon as notification of a claim has been received enter information onto Wirral Community NHS Trust database REPORTING TO THE NHSLA All claims must be reported to the NHSLA. developments during the life of a claim. The NHSLA must be kept fully informed of all From 1 st April 2002, responsibility for managing clinical negligence claims and accounting for clinical negligence liabilities under CNST transferred from Trusts/PCTs to the NHSLA. This, however, has not altered the work required by the claims handlers INVESTIGATING THE CLAIM To assist the NHSLA in determining how a claim should be responded to, the Claims Manager must: Report claim to NHSLA within 24 hours (Claim Report Form Appendix F). Enter new claim onto database. Acknowledge letter of claim within 14 days. Advise appropriate Head of Service and Director of Quality and Governance of new claim (send copy of letter of claim). Page 5

11 Advise Risk Manager of new claim. Advise Finance Department of new claim. Undertake preliminary analysis if not already done so (forward to NHSLA). Obtain and be familiar with the records and any relevant policies and protocols in operation at the time of the alleged incident (copy to NHSLA). Obtain any other relevant information e.g ward staffing levels, bed occupancy, numbers of staff on duty. Contact members of staff involved (via line manager) and find out their version of what may or may not have happened (have a record of contact telephone numbers etc). Arrange for relevant members of staff to meet with solicitors appointed by NHSLA (Claims Managermust be present at meeting). Forward any relevant documentation, discovered during life of claim to NHSLA. Advise relevant members of staff, relevant Head of Service, Director of Qulaity and Governance, Finance Department and Risk Manager of NHSLA decision re: liability. Enter outcome onto database. The NHSLA will advise of outcome and breakdown of cost. Quarterly reports of all claims will be received from the NHSLA and all panel approved solicitors. Reports will be checked for authenticity. If reports are not received, the claims manager will pursue ROOT CAUSE ANALYSIS Related policy GP 8- Incident Reporting Policy. Incidents may have had a root cause analysis prepared at the time of the incident if appropriate. The notification of a claim will not generate a root cause analysis. If a root cause analysis has not been undertaken at the time of the incidient e.g incident not reported, then the Claims Manager will liaise with the Risk Manager to discuss, who would be most appropriate person to undertake one if appropriate TRACKING DOWN STAFF WHO NO LONGER WORK FOR WIRRAL COMMUNITY NHS TRUST Every effort should be made to track down all key staff in respect of each case. If any have left, contact the Human Resources Department and/or staffing agencies used by Wirral Community NHS Trust to find out where they have moved to. Speak to other staff members. Where local information networks fail, try: (1) the Medical Directory (published annually Churchill Livingstone); (2) the GMC/UKCC (providing details of the staff member s registration number ); (3) the medical defence organisations 1.17 TAKING STATEMENTS After reviewing the records and receiving a preliminary report from the Healthcare Professional responsible for the patient, the Claims Manager should have a reasonable idea as to the members of staff involved in the treatment of care, which is alleged to have been substandard. The panel solicitors appointed by the NHSLA may contact the Claims Manager to request an interview with staff. The Claims Manager must accompany the solicitor and remain present during the interview. The Claims Manager may take the opportunity to note any Risk Management issues which may arise during the interview. These can then be fowarded on to Risk Management for consideration. Page 6

12 The solicitor will prepare a statement and forward this on to the member of staff for approval and signature at a later date. Statements should not be stored with the patient s records but kept in a separate file maintained by the Claims Manager. Statements must be forwarded to the NHSLA for information OBTAINING AN IN HOUSE EXPERT OPINION Where a claim is complex and /or seems to have some merit and especially where the preliminary opinion of the lead clinician is equivocal or fails adequately to deal with relevant issues (e.g causation) it may be useful to seek a view from another consultant/lead professional within Wirral Community NHS Trust. This person should be someone who is not directly involved in the case who has sufficient clinical experience to offer an expert assessment of its strengths and weaknesses. The NHSLA/panel solicitors will provide detailed instructions as to what the expert is required to consider THE NEXT STEP Once the NHSLA is in a position to take a view on liability there are a number of options to consider. The NHSLA will advise on the proposed course of action: (1) Make an admission of liability and invite the claimant to provide further details of his/her alleged injuries and any financial losses, with proof of the amounts where appropriate. (2) Offer to settle with NO admission of liability. (3) Deny Liability and provide the claimant/claimant s solicitor with a copy of a report obtained from the appropriate consultant/lead professional setting out the pertinent clinical facts of the alleged incident and his/her reasoned opinion as to why there is no evidence of negligence. Invite them to drop the claim. Note: This is only appropriate where there are good grounds for believing that the claim is misconceived and/or without merit. An optimistic preliminary report from the relevant consultant will not always justify such a step and care must be exercised to see that all aspects of the claim have been reviewed thoroughly first. (4) Seek an early opinion from an independent expert outside Wirral Community NHS Trust, Note: The NHSLA/panel solicitors will instruct independent experts. (5) Take no further action pending further communication from the claimant/claimant s solicitor. Any ex-gratia settlements offered by a Trust, whether as a consequence of a case passing through the complaints procedure or otherwise are, by definition, not payments based upon legal liability and are therefore not reimbursable under the CNST by the NHSLA. NB Make sure the file is reviewed regularly and if nothing further is heard from the claimant/claimant s solicitor within a reasonable period, consider writing to check whether the claim is still being pursued. Where the limitation period is shortly to expire, take care not to alert the claimant or his/her solicitor to the point by making contact close to the relevant date. Page 7

13 1.20 INDEPENDENT SECTOR TREATMENT CENTRES (ISTCs) These are a group of clinics and surgeries both static and mobile, owned by the private sector but providing treatment free of charge to NHS patients. While Independent Sector Treatment Centres cannot join the scheme in their own right, they can benefit from cover when treating NHS patients via the membership of their referring PCT. CNST cover extends to the work of ISTCs via the Primary Care Trust which refers the relevant patient. ISTC owners are expected to comply with these reporting guidelines. If claims are reported direct to the NHSLA, the owners, must simultaneously advise the PCT. Alternatively, ISTC owners should report fully to the PCT, which will inturn notify the NHSLA promptly VALUING THE CLAIM/ASSESSING QUANTUM It is helpful to the NHSLA if the Claims Manager assesses the quantum of the claim. This will include both the defence and claimants costs. The Judicial Studies Board Guidelines provide a very useful guide. The NHSLA will also provide guidance by telephone if necessary. Appendix D provides a basic guide to the task of assessing quantum COMPENSATION RECOVERY UNIT (CRU) For claims in respect of incidents on or after 1 January 1989, where the claimant has received social security benefits as a result of the injuries he/she has sustained, the DSS will claim them back from any damages that are recovered. The task of reporting cases to the CRU and obtaining certificates will be undertaken by the NHSLA. The NHSLA will need details of National Insurance numbers for all claimants to assist in this process CONDITIONAL FEE AGREEMENTS A Conditional Fee Agreement is an agreemnt between a person providing advocacy or litigation services and a claimant. This is commonly referred to as no win no fee agreement. Claimants entering into Conditional Fee Agreements on or after 1 st April 2000 may be able to recover the success fee charged by their solicitors. This can be as high as 100% of the solicitors standard charges. They may, in addition, be able to recover reasonable premium for any insurance they may take out to cover defendants costs and unrecovered disbursments NEGOTIATING WITH THE CLAIMANT/REPRESENTATIVE (MEDIATION) Mediation/Alternative Dispute Resolution (ADR) involves a trained mediator acting as go-between to facilitate settlement. Consider always the potential cost of such a step against the benefits which might be achieved WORKING WITH TRUST LEGAL ADVISORS With all claims, the Claims Manager must inform the NHSLA immediately. The NHSLA may instruct a panel solicitor. Page 8

14 Overall control of the management of the claim should remain with the Claims Manager, as Wirral Community NHS Trust remains the legal defendant. Provide the panel solicitors with clear instructions which set out the level of support/involvement that is required. Ensure that the solicitor gives clear and regular feedback on the work that is being done on behalf of Wirral Community NHS Trust. If Wirral Community NHS Trust wishes to take legal advice at the pre-action stage, the cost of the advice will not be reimbursed by the NHSLA. If the potential use of panel solicitors (usually Hill Dickinson s of Liverpool) is discussed with the NHSLA in advance, the NHSLA might agree that such costs will form part of the claim, provided that there is a likelihood of a claim actually arising CLAIMANT S PART 36 OFFERS A Part 36 offer (Woolf reforms) is where the claimant states a figure at which they are prepared to settle the claim. It is possible that these may be made at an early stage, even where the first notification is a letter of claim. In all cases they should be supported by a medical report and a schedule of losses. All such offers, must be reported to the NHSLA immediately, and Wirral Community NHS Trust should not give any indication to the claimant that any such offer is valid STATEMENT OF TRUTH If a Statement of Truth is received from the panel solicitors, it will need to be signed by the Chief Executive. In the absence of the Chief Executive, the Director of Finance will sign the document MAINTAINING PROPER REVIEW OF CLAIMS Claims Managers must have an efficient system for reviewing all claims files at regular intervals, including: (1) a pending system for active claims. This will help with chasing information requested from other departments. (2) A periodic review of each active file, with a check on the value of the claim and the anticipated timing of any expenditure required: (3) A time frame for archiving inactive claims INDEMNITY There have been circumstances when the NHSLA have declined to indemnify. Before considering the Authority s rights under the scheme the NHSLA will consider each set of facts individually APPLICATIONS FOR STANDARD DISCLOSURE Where Trust have failed to provide solicitors with standard disclosure under the 1998 Act(other than under one of the statutory exceptions), or otherwise, and those solicitors issue a court application to force disclosure, the NHSLA will NOT reimburse the legal costs involved in any such application COMMUNICATION An essential part of the Claims Manager s function is maintaining the channels of communication throughout the life of the claim. Page 9

15 All staff who are directly involved in an allegation of negligence must be kept informed of the claim s progress. Members of staff should be encouraged to contact the Claims Manager for information, advice and support at any time. Lead clinicians should be consulted on the choice of experts. Expert reports should be shared with the clinicians. Head of Service should be informed when a new claim is received and when a claim reaches conclusion. The Risk Manager should be informed of potential claims, new claims, expert reports, risks highlighted during life of claim and outcome of claim. The Finance Department should be informed of new claims and the outcome of claims COMMUNICATION WITH WIRRAL COMMUNITY NHS TRUST BOARD Detailed reports in the progress of claims (including expected settlement dates and actual outcomes) must be provided to the Quality and Governance Committee at quarterly intervals COMMUNICATION BETWEEN NHSLA AND TRUSTS The NHSLA or solicitors instructed will continue to advise Trusts in advance of conferences with Counsel and court hearings. Trust officers will continue to sign Defences and other relevant pleadings because Trusts, and not the NHSLA, will remain the legal Defendants. Where court hearings are likely to generate media interest, the NHSLA will agree with Wirral Community NHS Trust beforehand a press release or position to be adopted INVOLVING EXTERNAL COMMUNICATIONS In the event of claim arising from a serious incident, there may have been the need to involve external agencies. This should not be done as a result of the claim but at the time of the incident. During the investigation of the claim, it may become clear that external agencies have not been involved which should have been. These may include: Sudden or unexpected deaths should be notified to Her Majesty s Coroner by the doctor who certifies the patient s death. Where there is suspicion of gross professional misconduct then the relevant professional body,e.g General Medical Council or Nursing & Midwifery Council may need to be informed. Incidents involving medical devices or consumable products should be notified to the Medical Devices Agency. Incidents involving Estate Services or equipment should be notified to the NHS Estates by the nominated Estates Officer. Incidents of food poisioning should be notified to: The Local Authority Department of Environmental Health Infection Control. Please see Incident Reporting Policy GP 8 for futher information. The Claims Manager will consult with the Director of Finance & Chief Executive to obtain authority for involvement of external agencies EXTERNAL COMMUNICATIONS Appropriate communication with the NHSLA throughout the life of the claim must be maintained using the appropriate forms. The standard NHSLA claim report and claim outcome forms should be submitted to the NHSLA at the beginning and conclusion of the claim. Page 10

16 Close liaison should be maintained with Acute Trusts and/or the Strategic Health Authority and any areas of concern which affect these organisations should be brought to their immediate attention REMEDIAL ACTION The Claims Manager should always be alert to ways to reduce the incidence of claims. Good liaison with risk, clincial governance, and clinical audit staff is essential. Educating clinical staff about obvious litigation risks should be a high priority. Whenever a claim has been lost or has to be settled, steps should be taken to review the lessons learnt with the staff involved and any others whose conduct might be criticised in a similar fashion in the future. Anonymised information will be provided to the Risk and Governance Group (sub group of Quality and Governance Committee) for consideration/action. 2. EMPLOYER/PUBLIC LIABILITY TO THIRD PARTIES SCHEMES (LTPS) AND PROPERTY EXPENSES SCHEME CLAIMS The process of administration for employer/public liability and property expenses scheme claims is very similar to the process used for clinical negligence claims. Employer liability refers to a claim made by an existing or present employee of Wirral Community NHS Trust. Public liability refers to a claim made by a patient or a member of the public which does not fall into the clinical negligence category e.g slipping on a wet floor. Property expenses refers to damage to Trust property. The process for handling Clinical Negligence claims will be followed with the following exceptions as from the 1 st August 2006 LTPS claims reported to the NHSLA must include the following documentation: NHSLA LTPS Report Form Letter of Claim All documents relating to the type of claim being reported. A completed NHSLA Disclosure List must accompany all reported claims indicating which documents are enclosed. ( The declaration must be signed by an Executive Director of the organisation. E.G Chief Executive or Finance Director. NB: Claims will not be accepted into the Scheme without the necessary documents. Where no List and documents are attached the NHSLA will hold the claim pending receipt of the papers. If papers are not forwarded within one month of the first receipt of papers the NHSLA reserve the right to reject the claim. 2.1 ACKNOWLEDGING THE LETTER The letter of claim must be acknowledged to the solictors within 21 days. 2.2 LIABILITIES TO THIRD PARTIES SCHEME INCIDENT REPORT FORM For employer and public liability claims a Liabilities Incident Report Form must be completed and forwarded to the NHSLA (see Appendix F). A customised version of this form will be sent to the relevant managers for completion. Note: The excess for employer liability is 10,000 and 3,000 for public liability. The CommunityTrust therefore is liable to pay the first 3,000 on any successful public liability claim. Page 11

17 2.3 PROPERTY EXPENSES SCHEME REPORT FORM For damage or theft of property, a Property Expenses Scheme Report Form must be completed and forwarded to the NHSLA (see Appendix F) Note: The excess for property expenses scheme is 3,000 Buildings, 3,000 contents and Plant/Machinery 3,000. Wirral Community NHS Trust is liable to pay these amounts on any successful claim. 2.4 INVESTIGATING THE CLAIM The process of investigating the claim and liaising with the NHSLA is identical to those for Clinical Negligence. The relevant documentation is more likely to be incident reports for example. 2.5 HEALTH AND SAFETY EXECUTIVE REPORT (RIDDOR) Wirral Community NHS Trust has a legal duty to inform the Health and Safety Executive where an employee has been incapacitated for more than 7 consecutive days due to work related injuries; suffers a reportable major injury e.g fracture, amputation or dislocation; is hospitalised for 24 hours or more; or is diagnosed with a reportable disease. The Health and Safety Advisor will be able to provide further advice and copies of RIDDOR documentation. 2.6 SUPPORTING EVIDENCE Copies of risk assessments or any documentation which may prove that Wirral Community NHS Trust was endeavouring to make things safe must be copied and submitted to the NHSLA. (This is defence for WCT). Photographs may need to be taken e.g. hole in ground before any remedial work is undertaken. Note: Remedial work should be undertaken to reduce further incidents. 2.7 EXTERNAL INVESTIGATOR The NHSLA will arrange for their investigator to visit the site and meet the people involved in the incident. The Claims Manager must accompany the investigator and remain present during the interview. The Claims Manager may take the opportunity to note any Risk Management issues which may arise during the interview. These can then be forwarded on to Risk Management for consideration. Any correspondence which needs remedial action can be shown to the investigator. The investigator will submit a report to the NHSLA and will suggest a likely figure for payment. The investigator may however, suggest that there is no negligence. 2.8 DUTIES WITHIN THE ORGANISTATION Board of Directors Wirral Community NHS Trust Board has responsibility with regard to claims management and will require assurance that the claims management system is effective. Page 12

18 Committee with Overarching Responsibility for Claims Management The Committee with overarching responsibility for claims management will be the Quality and Governance Committee. The primary function of the Quality and Governance Committee is to provide assurance to the Board of overall compliance with all statutory and regulatory obligations and will ensure the effective management of Incidents, Complaints, Claims and Inquests and subsequent dissemination of lessons learnt. The Quality and Governance Committee will receive reports once a month detailing the numbers and progress of claims, including any trends. Links with Other Committees The Quality and Governance Committee will receive the Action Plan and Outcome Summaries from the Quality, Patient Experience and Risk Group. The Quality, Patient Experience and Risk Group will: Review any service level risks identified as a result of complaints received and escalates them when appropriate to the Quality and Governance Committee. Ensure an effective interface between claims handling, complaints management and incident reporting is taking place to ensure robust communication. Chief Executive - The Chief Executive is ultimately responsible for ensuring that all claims are dealt with efficiently and effectively. In practice this is a function which is delegated to the Director of Quality and Governance. Designated Board Member (Director of Quality & Governance) The Designated Board Member will ensure that the Board is kept informed of any major developments regarding issues related to claims. Claims Manager Wirral Community NHS Trust will have a designated Claims Manager who will be responsible to the Head of Nursing, Quality and Governance for the handling of all claims made against Wirral Community NHS Trust. The Claims Manager will be responsible for the day to day activities in the management of claims and will liaise directly with the Head of Nursing, Quality and Governance.Activities involve recording all claims received by Wirral Community NHS Trust, informing the NHSLA of all new claims; identifying and arranging for the presevation of relevant records and other items, such as equipment involved in accidents; Establishing, and as necessary maintaining contact with relevant staff and former staff; Obtaining reports from the investigating officer and liaisinig with the NHSLA and relevant staff at appropriate stages of the claim. Arrangements will be made to ensure that adequate advice can be obtained at all times. E.G NHSLA or Trust Solicitors. The Claims Manager will provide help and support to all staff that investigate and are involved with claims management. Investigating Officer The Divisional Manager will be responsible for the investigation of a claim working closely with the Claims Manager. The tool provided by the National Patient s Safety Agency for Root Cause Analysis (RCA) has been agreed as the systematic approach Wirral Community NHS Trust is adopting when investigating a claim. However, the notification of a claim will not generate a RCA. If a RCA has not been undertaken at the time of the incident, e.g incident not reported, the Claims Manager will Page 13

19 liaise with the Head of Nursing, Quality and Governance to discuss who would be the most appropriate person to undertake one if necessary. The role of the investigating officer is to gather information and statements relating to the claim. The investigation should be factual, including a review of the relevant records and documentation together with discussions with any staff member named or referred to in the Letter of Claim immediately. (Appendix C) The investigating officer will provide a full written report to the Claims Manager, together with copies of records and documentation referred to. The report should include the process of investigation, a full factual explanantion, and details of any action taken to resolve to prevent a recurrence of the problem. Duties of All Staff Every member of staff is expected to co-operate fully in the assessment and management of each claim, as required. Any member of staff that receives a letter purporting to be a claim for compensation must immediately forward this to the Complaints/Claims Department. Specialist Advisers Clinical staff who have not been directly involved with a patient s care which is subject to a claim may also be asked for their professional opinion to assist Wirral Community NHS Trust in deciding how best to handle a clinical claim. This may be due to the absence of the staff who were directly involved or for the purposes of obtaining an additional and independent view of the case. 3. LINK WITH INCIDENT MANAGEMENT AND COMPLAINTS MANAGEMENT There will be effective interface between claims handling, complaints management and incident reporting as Wirral Community NHS Trust recognises that these are important risk identification tools for the organisation, and in order to ensure effective risk management there is a robust chain of communication in place between all dsciplines. All policies and procedures are closely coordinated and written to all for such circumstances. 4. INTERNAL CONSULTATION, APPROVAL AND RATIFICATION PROCESS The Claims Handling Policy will be reviewed by Wirral Community NHS Trust s Quality, Patient Experience and Risk Group every 3 years unless new guidance/legislation is produced with any new guidelines/procedures for approval by the Quality and Governance Committee for final submission to Wirral Community NHS Trust Board. 5. CLAIMS DATA COLLECTION AND ANALYSIS Claims data collection and analysis will take place on a quarterly basis upon receipt of the quarterly reports received from the NHSLA. The Claims Manager will ensure that all claims against Wirral Community NHS Trust are reported on a monthly basis to the Quality and Governance Committee which is a sub committee of the WCT Board. 6. LEARNING FROM EXPERIENCE Related policy GP5 - Risk Management Strategy. Lessons learnt from claims are an important tool to assist quality and responsiveness. The Claims Manager will report the outcome of all claims on a quarterly basis to the Quality and Governance Group and to appropriate managers within Wirral Community NHS Trust to ensure that any identified risk management lessons are shared. Page 14

20 The Risk Manager will also be notified so that any organisation or clinical risks may be added to the WCT Risk Register. Lessons learnt will also be shared with Wirral Community NHS Trust s Quality, Patient Experience and Risk Group. 7. EQUALITY IMPACT ASSESSMENT Related policy GP25 Policy on Developing Policies The Claims Manager will ensure that an Equality Impact Assessment on Claims Handling Policy and Procedures lie with Wirral Community NHS Trust s related policy GP DISSEMINATION OF THE CLAIMS HANDLING POLICY This policy will be available to staff on the Intranet under the General Policy File. 9. IMPLEMENTATION OF THE CLAIMS HANDLING POLICY The WCT will provide appropriate awareness training on claims handling on a yearly basis for appropriate Trust staff. 10. REFERENCES IN RELATION TO CLAIMS HANDLING Department For Constitutional Affiars, Pre-Action Protocols for the Resolution of Clinical Disputes 1998/183. London: The Stationary Office.: Department for Constitutional Affairs, Pre-Action Protocol for Personal Injury Claims. London: The Stationary Office. The National Health Service Litigation Authority Framework Document. Clinical Negligence Reporting Guidelines Fouth Edition January Non-Clinical Claims Reporting Guidelines NHSLA Disclosure List. CNST/RPST Reporting Guidelines: April 2002 RPST Risk Management Standard; August ASSOCIATED DOCUMENTATION The Claims Handling Policy/Procedure has links to other policies within the PCT which are listed below. The list is not exhaustive. All policies are also available on the PCT Intranet website for access by all staff. GP 5 Risk Management Strategy GP 6 Managing the Quality of Health Records Policy GP 8 Incident Report Policy GP 25 Policy on Developing Policies HRP 29 Stress Management Policy Page 15

21 12. Monitoring It will be the responsibility of the Claims Manager to ensure that there is a minimum of quarterly monitoring of claim files. Quarterly reports will be submitted to Wirral Community NHS Trust Board, Quality, Patient Experience and Risk Group and the Quality and Governance Committee. Reports will include the progress and likely outcome of the claim, the final outcome of the claim and any proposal remedial action arising out of a particular claim. The compliance of this policy will be monitored by the following auditable Key Performance Indicators prior to review in 3 years or early in response to incidents or changes in legislation. 1.Acknowledging a new Letter of Claim within 14 days. 2.Notifying NHSLA within 24 hours of receipt of new claim 13. Archiving This policy will be archived locally by the policy author. Page 16

22 APPENDIX A PRE-ACTION PROTOCOL FOR THE RESOLUTION OF CLINICAL DISPUTES This protocol accompanies the Civil Procedure Rules, introduced on 26 th April 1999 as part of a package of reforms to improve the ways 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. The Civil Procedure Rules (CPR) 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. In the first instance, 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 forty days of the request and at a cost not exceeding those permissible under the Data Protection Act If, following 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. This letter 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, including where relevant, the 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. In complex cases a chronology of events is helpful, but in any event, sufficient information should be provided to enable the healthcare provider to commence their own investigations and place a value of the claim. The healthcare provider should acknowledge the Letter of Claim within 14 days (21 for EL/PL) of receipt and identify who will be dealing with the matter. Within three months of the date of acknowledgement the healthcare provider should provide a 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 then an alternative explanantion must be given. Any documentation referred to must be disclosed with the response. Where an offer of settlement has been made by the claimant, then a response to that offer should be made. The defendant, supported with 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. Page 17