CLAIMS HANDLING POLICY & PROCEDURE. Clinical Negligence, Employer/Public Liability and Property Expenses Scheme Claims

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1 CLAIMS HANDLING POLICY & PROCEDURE Clinical Negligence, Employer/Public Liability and Property Expenses Scheme Claims Director Responsible: Responsible Person: Review Date: Document type: Date Issued: Ratified by: Reference: Version Nancy O Neill Claims Manager Mar 2008 Policy document Mar 2007 Board Claims One Supersedes Approving Body Predecessor PCT policies Board Supporting Procedure(s) N/A Contact for further details Nancy O Neill Distribution All areas

2 CONTENTS Claims Handling Policy 1. Introduction 2 2. Background 2 3. Aims and Objectives 3 4. Key Principles 3 5. Definitions 4 6. Roles and Responsibilities 6 7. Claims Handling Procedure 8 8. Involving External Agencies 8 9. Staff Support Clinical Governance Records Management Confidentiality Information on Claims Root Cause Analysis Reference Documents 10 Claims Handling Procedure 1. Introduction The Role of the NHS Litigation Authority Day to day Management of Claims The role of the Claims Manager Notification of Claims Non reportable Claims Registering a Claim Clinical Negligence Claims Processing an Employers or Public Liability Claim Investigation of Claims Instructing the NHSLA File Notes Inquests Root Cause Analysis Advice on Complaints Access to Legal Service Supporting Policies 23 1

3 BRADFORD AND AIREDALE TEACHING PRIMARY CARE TRUST CLAIMS HANDLING POLICY 1. Introduction Bradford and Airedale Teaching Primary Care Trust (tpct) recognises that there will be occasions when individuals who consider they have suffered personal injury or breach of their human right(s) will make a claim. The purpose of this policy and supporting procedure is to provide a mechanism for identifying and responding to (actual and potential) claims. The tpct is committed to effective and timely investigation and response to all claims/potential claims. The tpct will follow the requirements of and note the recommendations made by the National Health Service Litigation Authority (NHSLA) in the management of all claims. Every member of staff is expected to co-operate fully, as required, in the assessment and management of each claim. The tpct also aims to ensure that its policies will be compliant with the Human Rights Act 1998 It is important that patients, staff and visitors who have valid claims against the tpct have access to a range of remedies including an explanation, an apology, remedial treatment and where justified monetary compensation. This policy will apply to all allegations of clinical negligence, personal injury and breach of human rights. Every member of staff is expected to co-operate fully with the claims manager and solicitors in the assessment, investigation and management of each claim. This policy also applies to claims made by the tpct to the NHS Litigation Authority under the Property Expenses Scheme. 2. Background The review of the Civil Justice System in 1996 and introduction of Civil Procedure Rules in 1999 was aimed at encouraging a climate of openness when something has gone wrong and to increase the prospects that disputes can be resolved without resort to court proceedings. The NHSLA issued guidelines to Trusts in March 2002 and has endorsed this approach, requiring Trusts to develop systems and processes to manage claims inhouse to achieve the aims of the civil justice reforms. The National Patient Safety Agency (NPSA) has a mandatory incident reporting and learning system for serious adverse patient incidents. These are cases which are likely to become claims and therefore it is necessary for the systems for complaints, claims and incidents to be aligned. 2

4 3. Aims and Objectives To process claims at a local level, in a systematic and co-ordinated way to achieve: openness and timeliness in the investigation of concerns raised by individuals who feel they have been harmed by the acts or omission of the tpct or its staff prompt processing of claims to remove uncertainty for all involved, particularly the claimant, and to settle quickly those claims that have merit, and to discourage the prolonged pursuit of unmeritorious claims and the prolonged defence of meritorious claims minimisation of costs associated with the investigation of claims and any subsequent litigation resolution of as many disputes as possible without litigation where a resolution is not achievable, to lay the ground to enable litigation to proceed on a reasonable timetable, at a reasonable and proportionate cost and to limit the matters in contention 4. Key Principles The tpct s aims are to: use the results of adverse incidents and complaints positively as a guide to how to improve services and reduce the likelihood of claims being made take a proactive approach to try and resolve claims rather than letting them develop into unnecessary litigation remedy areas of inadequacy revealed by the investigation of claims take a systematic approach to claims handling in line with best practice and guidance issued by the NHS Executive, the NHS Litigation Authority and the Courts. The tpct will also ensure that: an injured party is offered remedial care the patient/healthcare provider relationship is maintained/restored as far as is possible to do so the processes for claims handling are integrated into the overall risk management framework within the tpct reliable and complete information is gathered at the start of any claim based on root cause analysis 3

5 individual claims are categorised in terms of severity and likelihood and the risk score will determine the level of investigation to be undertaken risk issues are identified and addressed promptly staff who are involved in the investigation of claims are supported through the process and kept up-to-date with developments the interface between the Patient Advice Liaison Service, complaints, incidents and claims is improved so that individuals are not compelled into unnecessary litigation 5. Definitions 5.1 Claim A request for remedies following a perceived adverse outcome which includes an explicit claim for financial compensation. This includes complaints leading to claims, notification of serious adverse events, requests for disclosure of medical records. 5.2 Clinical Negligence An allegation that a healthcare professional has failed to act in a patient's best interest by failing to exercise reasonable care and skill appropriate to the care and/or treatment provided so that no responsible body of clinical opinion would have supported what the healthcare professional did. 5.3 Personal Injury Actual harm caused to a patient, staff, or visitor or his/her property, arising from a breach of common law or statutory duty to take reasonable care to provide safe premises, systems of work, equipment and competent staff. 5.4 Employers Liability The tpct is under a common law duty and a statutory duty to take reasonable care to provide competent staff, safe plant and equipment, safe premises and safe systems of work. The tpct may be liable to pay compensation to any employee for any injury or loss suffered as a result of a breach of these responsibilities. These circumstances may also give rise to criminal liability. 5.5 Public Liability The tpct is under a common law duty to take reasonable care in all circumstances to make safe any visitor to its premises. The tpct may be liable to pay compensation to any visitor who sustains injury or loss as a result of a breach of a duty to take reasonable precautions to protect the visitor. 4

6 5.6 Occupier Liability This is a claim against an occupier of a building by a member of the public following an adverse incident on the premises resulting in personal injury. 5.7 Human Rights Act This is a claim against a public authority by an individual for acting incompatibly with their rights. 5.8 Property loss or damage This is a claim by the tpct for property expenses arising from loss or damage to its property following an adverse incident. 5.9 Judicial Review The purpose of seeking a judicial review is to force a public authority to either do an action (Mandatory Order) or to prevent it from doing an action (Prohibitory Order) or to overrule a decision already made (Quashing Order) National Health Service Litigation Authority The National Health Service Litigation Authority (NHSLA) is a Special Health Authority set up under the NHS Act The principle task of the Authority is to govern the financial pooling schemes which enable Trusts to 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. The schemes are the Existing Liabilities Scheme (ELS), the Clinical Negligence Scheme for Trusts (CNST) and the Risk Pooling Schemes for Trusts (RPST) and Liabilities to Third Parties Scheme (LPTS) and the Property Expenses Scheme (PES). The PCT is a member of these schemes 5.11 Significant Litigation Risk A claim will be deemed to have a significant litigation risk where the likelihood of settlement is judged to be 50% or above, regardless of the potential value of settlement. The following circumstances may give rise to a significant litigation risk: Incidents categorised as RED or AMBER, particularly those revealing a possible breach of duty leading to a potential large value claim i.e. in excess of 250,000 Claims arising from a complaints investigation where a response, on the facts, indicates that an admission of liability has been implied Where a letter of claim (an open letter setting out the allegations and making a demand for monetary compensation on which the tpct has to investigate and respond within 3 months) and/or any other formal proceeding issued by the courts is the first communication received. 5

7 5.12 Limitation Periods The limitation periods on initiating claims are as follows: In general, under the Limitation Act 1980, claims have to be made within three years from the date of the injury, or alternatively three years from the date the claimant knew (or ought to have known) they had suffered an injury. In the case of minors, the three-year period does not start until they reach the age of 18 years. People with a mental disability have unlimited time in which to make a claim. A Human Rights Act claim has to be made within one year of the act being committed, or its failure to act. A Judicial Review Application has to be made within three months of the act or omission (parties cannot agree to extend this time limit). 6. Roles and Responsibilities The tpct is a member of Clinical Negligence Scheme for Trusts (CNST), a scheme designed to optimise patient care in the NHS and to protect providers against the adverse consequences of clinical negligence. The tpct will actively seek the permitted CNST discount through the development and implementation of a comprehensive risk management policy. 6.1 The Board The tpct Board will: promote a climate of openness encourage prompt incident reporting and investigation receive reports on the key risks in the organisation, including those arising from the investigation of claims The tpct Board member with responsibility for claims will be the Associate Director of Corporate Affairs and s/he will keep the Board informed of major developments on claims related issues. A committee of the tpct, the Risk Management Committee, which is accountable to the Audit Committee, will receive regular reports on individual/aggregated claims and trends information. The Risk Management Committee will be chaired the Associate Director of Corporate Affairs of the tpct. 6.2 Chief Executive The Chief Executive has overall responsibility for risk management including clinical negligence and personal injury claims. 6

8 6.3 Associate Director of Corporate Affairs and the Medical Director The Associate Director of Corporate Affairs is responsible for the strategy and procedures for managing complaints, clinical negligence and personal injury claims, and will inform the tpct Board of significant issues and developments related to the management of claims. The Medical Director has the lead responsibility for clinical governance and will work closely with the Associate Director of Corporate Affairs to ensure the smooth operation of the claims handling policy. 6.4 Claims Manager The Claims Manager will act as the claims lead for the tpct. Specific responsibilities include: responsibility for the conduct and control of all claims in accordance with the tpct s Claims Handling Procedure responsibility for liaising with tpct staff, neighbouring acute and community trusts, NHSLA, legal advisors, claimant solicitors, Coroner, Police Services and any other relevant person/agency, as appropriate keeping relevant staff informed of developments with regard to individual claims ensuring the tpct s compliance with the CNST reporting guidelines providing reports to tpct committees and Managers/ Directors, as appropriate 6.5 Risk Manager The Risk Manager will be responsible for liaising with the Claims Manager and ensuring that s/he is made aware of incidents and/or serious untoward incidents (SIUs) recorded on the risk register that may lead to a claim. Specific responsibilities include: ensuring that a comprehensive record of incidents is maintained on the Prism Risk Management system identifying risk management issues that may lead to a claim and advising the Claims Manager of these 6.6 Personnel The Personnel department will: maintain and provide information on staff to the Claims Manager in connection with tracing staff and/or employers liability claims 6.7 Senior Managers/Directors Senior Managers and Directors will ensure that: appropriate arrangements are in place to ensure that the Claims Manager is informed promptly of issues that might give rise to a potential claim 7

9 lessons learnt from the investigation of claims are discussed at Audit Committee and shared and that the risks identified inform service developments 6.8 All Staff All staff are required to: report incidents in accordance with the tpct Incident Reporting Policy. This will ensure the early investigation of incidents which may potentially give rise to a claim. respond to requests for reports, information and documentation in connection with the investigation of potential claims and/or consent for the release of patient records, in a timely manner. 7. Claims Handling Procedures It is not the tpct s intention to apportion blame but to learn from the circumstances giving rise to a claim in order to improve practice, and to encourage a supportive, non-punitive culture so that matters that may result in a claim can be reported openly. The methods used for the investigation of claims are designed to focus on systems failures rather than individual error. The primary aim of all claims investigations is to identify what went wrong or may have gone wrong in order to minimise the risk of an adverse outcome in the future. The procedure for handling claims is set out in the Claims Handling Procedure. General principles will apply as follows: All claims will be recorded on a database Claims identified as having a significant litigation risk will be promptly notified to the relevant scheme within the NHSLA in accordance with that scheme s reporting guidelines Claims will be investigated by the tpct and its appointed solicitors in conjunction with relevant tpct staff and, where appropriate, external agencies Managers will be informed so that appropriate support mechanisms for staff involved in potential claims can be put in place from the outset Root cause analysis will be carried out on all claims where liability is admitted, which will facilitate the learning of lessons and development of action plans for which Senior Managers/ Directors will be responsible for implementing Lessons learned will be shared (as appropriate and with due regard to an individual s right of confidentiality) via the Audit Committee 8. Involving External Agencies The Claims Manager will liaise with appropriate tpct Directors to determine if external agencies should be involved in the claim investigation process, for example: where the circumstances give rise to suspicion of an unlawful act, the relevant Director will consult the Chief Executive to decide whether the matter should be reported to the Police services 8

10 where the circumstances give rise to allegations of professional misconduct, the appropriate Director will advise whether the matter should be reported to the relevant professional body where Health and Safety issues arise and the matter has not previously been reported, the relevant Director will decide whether it is necessary to inform the Health & Safety Executive (HSE). the Associate Director of Corporate Affairs and/or Risk Manager will advise if the matter should be reported to the National Patient Safety Agency and/or Strategic Health Authority, and National Clinical Assessment Authority and/or the Security Management Service (SMS) the relevant departmental heads will be responsible for advising whether the following agencies should be notified: Medical Devices Agency, Medicines Agency, Department of Counter Fraud Services. 9. Staff Support Systems are in place to assist staff during the investigation of a potential claim and all members of staff must be informed about the staff counselling service. Any member of staff involved in the investigation of a claim will be kept informed of the progress of an investigation. It is not the intention of the investigation process to assess whether disciplinary action against an individual member of staff should be considered. However, if, as a result of the investigation there is prima facia evidence of a breach of the law, professional misconduct, or repetitive incidents, further action may need to be taken. In these circumstances, the appropriate senior manager will decide whether the disciplinary procedure should be invoked. Further advice is contained in the disciplinary procedure. Staff should also be aware that in exceptional circumstances their actions may give rise to personal criminal liability. 10. Clinical Governance Procedures for the investigation, analysis and response to clinical negligence and personal injury claims will be integrated into and support the overall clinical governance framework of the tpct. This will enable the development of an approach whereby improvements in services can be demonstrated and standards monitored through audit and risk management. 11. Records Management All records, statements, documents and evidence relating to the claim will be held centrally by the Claims Manager. Original patient records will not be taken outside the tpct, unless directed by a statutory body such as the Police or Coroner. In these circumstances copies will be taken for retention by the tpct. 12. Confidentiality Personal details about the identity of patients and staff involved in the investigation of claims will be treated with the strict confidentiality. Information related to individual patients, and the care and treatment provided to them, will not be released to the media without the consent of the patient. Information on staff involved in claims will only be 9

11 released to Directors and senior managers responsible for the line management of those staff. 13. Information on Claims Comprehensive information on claims will be maintained on the database. This will assist in the production of relevant and timely reports for the Risk Management Committee, Audit Committee and the tpct Board. Due regard will be paid to the confidentiality of data relating to individuals. 14. Root Cause Analysis Incidents which are considered to be serious may have had a root cause analysis prepared at the time of the incident. If a root cause analysis has not been undertaken, the Affairs to assess whether a root cause analysis would be appropriate. See Root Cause Analysis Procedure for the Investigation of Incidents, Complaints and Claims. 15. Reference Documents NHSLA, NHSLA. CNST Reporting Guidelines Fourth Edition January 2007, London: Access to Health Records Act London: HMSO. NHSLA, PES & LTPS Membership Rules. London: HMSO. CNST, Clinical Risk Management Standards. Version: 04. London: NHSLA. Data Protection Act Protection and Use of Patient Information. Department of Health, Risk Management System (Core Standard) 10

12 CLAIMS HANDLING PROCEDURE 1. Introduction The number of complaints against NHS Trusts and other Healthcare Providers is growing as patients become more prepared to question the treatment that they are given, to seek an explanation of what happened, and to seek appropriate redress. In general, patients may seek further treatment, an apology, assurances about future action or compensation. On occasion patients may feel that it is necessary to go to litigation by pursuing a claim against the Trust. 2. The role of the NHS Litigation Authority The National Health Service Litigation Authority (NHSLA) is a Special Health Authority set up under Section 11 of the NHS Act Its date of commencement was 21 st November The NHSLA was established to deal with claims against NHS bodies. It is effectively our insurance company and is based in London. The NHSLA administers three schemes: 2.1 Clinical Negligence Scheme for Trusts (CNST) The Clinical Negligence Scheme for Trusts (CNST) covers claims relating to incidents that occurred from 1 st April 1995 onwards. The CNST only need to be aware of claims that fall into certain categories. The reporting guidelines are covered in more detail later in this document. 2.2 Existing Liabilities Scheme (ELS) The Existing Liabilities Scheme covers clinical negligence claims relating to incidents that occurred before 31 st March Risk Pooling Scheme for Trusts (RPST) This is the NHSLA Risk Pooling Scheme for employer s, public and third party liability claims. It covers claims relating to incidents after 1 st April The scheme is split into two parts: 1. Property Expenses Scheme (PES) 2. Liabilities to Third Parties Scheme (LTPS) For non-clinical claims relating to incidents prior to 1 st April 1999, cover is provided by a commercial insurance policy. Employers Liability (EL) and Public Liability (PL) claims under the LTPS are dealt with later on in this document. 11

13 3. Day to Day Management of Claims - The Role of the Claims Manager The Claims Manager is responsible for the conduct, documentation and investigation of all claims and potential claims where it is not yet clear whether a claim will be pursued. In their absence this will be the responsibility of the Associate Director of Corporate Affairs. The Claims Manager will carry out such preliminary action, investigations and analysis of reportable claims as is required by the NHSLA and will liaise with the NHSLA as necessary over the conduct of such claims. The Claims Manager will provide Performance Indicators to the Associate Director of Corporate Affairs or the Trust Board Members on request. The Associate Director of Corporate Affairs will be able to locate appropriate files in the Claims Manager s absence and obtain information as necessary. Informal advice, if required, can be obtained direct from the NHSLA Claim Manager. When an urgent decision is required by the tpct on Claims Management, including the authorisation of a payment, this will be referred to the Chief Executive and/or the Director of Finance. 4. Notification of Claims Notification of claims can come in many forms and it is imperative that we have systems in place to recognise these when they arrive. Once the litigation process starts, tight timetables are imposed. All staff, particularly those who receive, open and distribute incoming mail at tpct premises, should be aware that all such correspondence should be passed via the Patient Safety Assistant to the Claims Manager, who is responsible for handling claims for the tpct. In the absence of the Claims Manager, correspondence should be passed to the Associate Director of Corporate Affairs for appropriate action. 5. Non Reportable Claims Decisions on whether to settle non-reportable claims will normally be based on an assessment of the likely outcome of the claim, on the balance of probabilities, if it should come to Court. Exceptionally, in the case of small non reportable claims where the cost of defending the claim would far outweigh the cost of settlement, an offer with no admission of liability may be considered. Any decision on settling a non reportable claim will be authorised by the Chief Executive and/or the Finance Director and should be based on the following considerations: The strength of the tpct s defence; The relative costs of defending or settling the claim; Any specific issues relating to the tpct, any of its Directorates or members of staff concerned with publicity or public relations; 12

14 The likelihood of a settlement attracting further similar claims. 6. Registering a Claim CNST and LTPS claims are registered on the database by the Claims Manager. They are given a tpct reference number. A file is then opened to retain all correspondence. The colour of the file is determined as follows: CNST claims LTPS (EL & PL) claims Advice/inquests Possible Future Claims Red Green Blue Purple 7. Clinical Negligence Claims Claims received can relate to incidents occurring over a wide period of time. Claimants must make a claim within 3 years of the incident occurring or within three years of their date of knowledge i.e. the date that they discovered negligence may have occurred. For children, claims can be brought up to 3 years after their 18 th birthday. Depending on the date of the incident, responsibility for the claims is as follows: Prior to 1 st October 2000 After 1 st October 2000 The nature of the claim will determine which organisation has responsibility This is a tpct claim as it occurred after the tpct was formed 7.1 Processing a Clinical Negligence Claim Potential CN claims should be notified to the tpct in a letter before action (LBA). This is usually from a solicitor but can be from the claimant. This will state that the claimant is considering making a claim regarding treatment received which they allege was negligent. The LBA should include as much information as possible about the claimant and the treatment (dates, doctor s involved, brief overview of allegations). At this stage the solicitor will usually be asking to see copies of the medical records. They must provide written consent from the claimant for the notes to be disclosed to the solicitor. This must state that the claimant (named) consents to the tpct disclosing their notes to a named solicitor. These requests should adhere to Department of Health guidelines and constitute satisfactory evidence for the tpct s purposes of the patient s consent for the release of their records to their legal advisor. If appropriate consent is not received, the records cannot be disclosed. Providing the appropriate consent is obtained, a copy of the medical records must be disclosed within 40 days of receiving the LBA. The claim is then processed as follows: 13

15 Register the claim in the database system as fully as possible and place in red file Check patient details i.e. casenote number and practitioner involved Check whether the same incident is being, or has been dealt with, as a complaint. If so, a copy of the complaint file should be obtained as this may already contain statements from the relevant clinicians that can assist the claim review Add appropriate reminder dates to the database for chasing reports/disclosing notes etc. 7.2 Disclosing records Initially it is usually the general medical records that are requested. However, claimants may also request the following: Health Visitor & District Nurse Records Occupational Health Records Directorate of Nursing & Provider Services OH Department (send a copy of employees consent when requesting notes) The copy records received from the appropriate service should be in the correct order, numbered and have a cover sheet confirming who they relate to and on what date they were copied. Once the copy records are received, a further set should be copied and counted for disclosure (the first copy being kept with the claim file by the Claim Manager). They are disclosed to the claimant s solicitor approximately three working days before the 40 day deadline. Copy records should be sent by Recorded Delivery. Details of the x-ray schedule (if applicable) should also be included in this letter. The Claims Manager will send an invoice to the solicitors for 10 administration fee plus 30p for each page (to a maximum of 50 as determined by the Data Protection Act 1998). Charges for x-rays or other radiology results are as follows. For plain x-ray films the charge is 10 administration plus 5 per film. However, the above items can only be charged for if the 50 maximum under the DPA 1998 has not already been exceeded. 14

16 7.3 CNST Reporting Guidelines The CNST Reporting Guidelines (January 2007), in brief, are that claims should be reported to the CNST when a significant litigation risk has been established. These would include: Incidents reported which are graded red (NPSA Reporting Procedures) that reveal a possible breach of duty leading to a potential large value claim (damages over 250,000) must be reported as soon as possible, usually before the claim is made Claims arising from the complaints procedure where the response, on the facts, indicates that an admission of liability has been implied Requests for disclosure of records where the preliminary analysis indicates the possibility of a claim with a significant litigation risk, regardless of value Claims where a formal letter of claim is the first indication of any action If proceedings are issued or served on the tpct the NHSLA should be informed immediately It is prudent to advise the NHSLA about all claims received. They can then make the decision as to whether the claim is reportable or not. When claims are reported to the NHSLA a covering letter should be accompanied by: Copy of correspondence from claimant s solicitor Copy of any reports or comments received from relevant clinicians Preliminary analysis - if this has been completed The NHSLA will then appoint a case manager and they will liaise with the tpct regarding future management of the claim. Every effort will be made to ensure that potential claims are brought to a satisfactory conclusion without the necessity of a court hearing, by means of discussion, negotiation and, if applicable, mediation. When a claim is reported the date should be noted on the current claims database and the front of the file annotated with the date of when it was reported. 7.4 Letter of claim The claimant s solicitor will review the medical records and may obtain an independent expert report. If the claim is to be pursued they must then send us a formal letter of claim. This should outline the allegations in detail and also provide us with details of the loss suffered by the claimant as a result of the alleged negligence. On receipt of a formal letter of claim the following will happen: The letter must be acknowledged by the tpct within 14 days and reported to the NHSLA within 24 hours 15

17 Letter reviewed with case manager (NHSLA) alongside information to date Notify the Associate Director of Corporate Affairs and the relevant Director concerned within 5 working days Letter may be reviewed by our expert if one has been commissioned 7.5 Letter of response The tpct should investigate the claim and the NHSLA should respond within 3 months of the letter of claim providing a reasoned answer to it in the form of a letter of response. The NHSLA, in consultation with the tpct, will specify which issues of breach of duty/or causation are admitted and which ones are denied and why. The letter of response will be drafted by the NHSLA who deal with all Clinical Negligence cases under CNST (Clinical Negligence Scheme for Trusts). It should be noted that admissions made in a letter of response are binding. If the claimant is not satisfied with our response, they may then issue proceedings. Under a set protocol, the claimant should not issue proceedings until 3 months from the date of the letter of claim; unless there is a limitation issue and/or the patient s position needs to be protected by early issue. 7.6 Proceedings The conduct and control of all claims at the Hearing and Resolutions Pre-Hearing stage is the responsibility of the NHSLA or instructed Solicitor in consultation with the Claims Manager. When court proceedings are served on the tpct they will usually include the Statement of Claim along with the claimant s medical evidence i.e. expert s report and their schedule of damages. The timetable for the claim is now controlled by the court. At this stage the NHSLA would probably directly instruct solicitors, if this has not already happened, who would deal with the following: Defence A defence must be submitted by the NHSLA within 28 days of service of the Statement of Claim form. This may be extended by a further 28 days by mutual agreement with the claimant s solicitor but anything more than this will require a consent order from the Court. Allocation Questionnaire These must be completed and returned to the court by a particular date. Information included is which track we feel the case should be dealt with and details of our witnesses and experts. The NHSLA or panel solicitors will advise. 16

18 Case Management Conference This is a meeting with the claimant s solicitor in front of a judge to set the timetable. Deadlines will be set for: Exchange of expert evidence Exchange of witness statements Experts to confer and produce a schedule of agreement/disagreement Date for trial Not many claims actually go to trial. Most are settled before then by negotiation with the claimant s solicitor. 7.7 Settlement A settlement may be negotiated at any point along the way depending on the defensibility of the claim. A settlement can include payment for: General damages for pain, suffering and loss of amenity Special damages for e.g. equipment needed Loss of earnings If we settle a claim it is usually on the basis that we will also be responsible for the claimant s legal costs. Before any payments for damages can be made, a certificate of recoverable benefits must first be obtained from the Compensation Recovery Unit (CRU). The NHSLA are responsible for making all payments for settlement of clinical negligence claims. If a claim is nearing settlement a briefing note should be sent to the Chief Executive, Associate Director of Corporate Affairs and the Medical Director outlining the brief details of the case and the expected settlement. This is to ensure that they are forewarned should any press interest arise. Compensation Recovery Unit (CRU) The CRU is part of the DSS. If a person has received benefit payments as a result of the incident in question, and we agree to compensate them, the benefits must be repaid to the CRU. The amount of benefits recoverable can therefore affect the amount the claim is settled for. All claims must be reported to the CRU. Any claims nearing settlement will be under the management of the CNST and therefore responsibility for CRU information lies with the NHSLA. 17

19 7.8 Closure of files A file can be closed after a claim is settled, withdrawn or discontinued. All relevant practitioners should be informed of the outcome. The claim is then reviewed for any risk management issues and learning points before archiving. 8. Processing an Employers or Public Liability Claim These claims are normally made via a solicitor s letter of claim. This should provide details of the claimant as well as a brief summary of the incident. The solicitor will usually ask us to refer the letter immediately to our insurers. The three year limitation period still applies and responsibility for a claim is as follows: Prior to 1 st October 2000 The nature of the claim will determine which organisation has responsibility After 1 st October 2000 This is a tpct claim as it occurred after the tpct was formed 8.1 Letter of Claim Receipt of a letter of claim is likely to be the first indication the tpct receives of a potential EL or PL claim. The tpct should acknowledge the letter of claim and forward it to the NHSLA who will deal with it on the tpcts behalf. The NHSLA will acknowledge the letter of claim within 21 days of receipt For tpct claims the initial action should be as follows: Acknowledge the letter of claim and forward to the NHSLA within 5 working days The claim is registered in the usual way and placed in a green file. Enter the details of the claim on the database as fully as possible Liaise with the Risk Manager, as appropriate, regarding investigation of the incident. Statements from people present are required as well as the following: Accident/Incident report Risk assessment of the task Relevant policies Complaint file RIDDOR report to the HSE 18

20 Contact the appropriate Payroll Manager, by , to request details of claimant s earnings for six months prior to and six months after accident and Personnel for details of sickness absence On receipt of report from Risk Manager the file should be reviewed by the Claims Manager in liaison with the Associate Director of Corporate Affairs. 8.2 Letter of response Copy correspondence from the claimant s solicitor should be submitted to the NHSLA along with the results of any local investigations. If necessary the NHSLA Claims Inspector will then visit the tpct to carry out further investigations. The NHSLA will investigate the claim and within 3 months of the acknowledgement of the claim provide a reasoned answer to it in the form of a letter of response. If liability is denied, reasons must be given for the denial and documents must be enclosed which are material to the issues in dispute; and which would be likely to be ordered to be disclosed by the court during proceedings. The letter of response will be drafted by the NHSLA and admissions made in a letter of response are binding for all claims. 8.3 Disclosure of documents Copies of the documents requested in the letter of claim must be disclosed to the claimant within three months of receipt of the claim, if liability is to be disputed. 8.4 Closure of files All involved staff should be informed of outcome i.e. those who have provided reports. The claim is then reviewed for risk management issues before closure. 9. Investigation of Claims The receipt of either of the following will trigger an internal investigation: A request for medical records pursuant to the pre action protocol for clinical negligence disputes which intimates a claim against the tpct A letter of claim; or A claim form 19

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