Agenda Item 8.12 CENTRAL MANCHESTER UNIVERSITY HOSPITALS NHS FOUNDATION TRUST. The Director of Corporate Services Carole Self

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1 CENTRAL MANCHESTER UNIVERSITY HOSPITALS NHS FOUNDATION TRUST Report of: Paper prepared by: The Director of Corporate Services Carole Self Head of Legal Services Michelle Lindup Date of paper: May 2014 Subject: Clinical Negligence and Liabilities to Third Party Claims Annual Report Purpose of paper: To inform the Board of Directors on the 2013/14 Clinical Negligence and Liabilities to Third Party Claims and Inquests Introduction Clinical negligence claims are managed on behalf of the Trust by the National Health Service Litigation Authority (NHSLA), through the Clinical Negligence Scheme for Trusts (CNST) of which the Trust is a member. Employer s Liability claims and Public Liability claims are managed by the NHSLA on behalf of the Trust (Liabilities to Third Party Scheme - LTPS). The table below outlines the change in premiums over the last 2 years as well as the premium for the current year. Scheme CNST Med Neg LTPS EL/PL Financial year Premium 2012/13 9,410,931 Trafford acquisition included 2013/14 10,564, /15 11,400, /13 338,000 Trafford acquisition included 2013/14 544, /15 656,000 The NHSLA base annual premiums on the claims expected to be paid within the next 12 months. This takes into account risk profiling for the NHS overall, in addition to the specific risk profile for the individual Trust which includes the specialist activity, whole time equivalents and risk group weightings. Premiums are also adjusted if a Trust s claims payments have been significantly higher than its contributions over the 5 years to 31 March Nationally premiums have increased by 5% in respect of both schemes. In addition, The NHSLA highlight that over the last 5 years they have paid 5.3M more in relation to settling claims than the Trust has paid into the scheme.

2 Claims Agenda Item 8.12 Clinical Negligence Claims As at the end of the financial year 2013/14 the Legal Services Department are managing 612 intimated or active claims being pursued against the Trust. These include both preaction cases and claims reported to the NHSLA. Not all potential claims are reportable to the NHSLA and in the initial pre-action stage the matter is dealt with, within the Department (to reduce costs). It is not the case that all claims reported to the NHSLA cannot be defended or will result in financial settlement to the claimant. Below is a summary of claims received during the last 2 years.. Financial No. of Claims Total No. of No of Claims Year rec d during active claims reported to the the year NHSLA 2012/ / Clinical negligence claims may take a number of years to be concluded due to the complexity of the matter, the gathering of expert evidence and the necessity to await the progress of the claimant s condition and progress before damages can be settled. In some cases interim payments are made whilst such investigations continue, if there has been an admission of liability made. Claims involved with birth injuries are likely to take many years to resolve whilst the child s development is assessed. The right to claim in children s cases exists until their 21st birthday. If a person does not have capacity there is no limitation period within which a claim may be brought. The NHSLA is carrying provisions, to include damages, claimant s costs and defence costs, with a value as outlined below:- Reserve Outstanding Reserve Outstanding Amounts Paid Financial Year Damages and Costs 1/3/91-31/3/95 26,688,660 Financial Year Damages and Costs 2012/13 120,943, /14 168,029, /13 41,170, /14 45,791,763 It is difficult to compare costs paid out with the previous year as claims differ significantly. One claim of a complex nature in a year could result in a significant amount paid out. Also a claim is not generally settled or defended in the year it is received. An obstetric claim may take years to settle due to improvement or deterioration in condition and prognosis. Ten years ago a brain damaged birth case would be quantified at 1,000,000 each, now such claims are quantified at 10,000,000 each an increase of 1,000,000 per year this is reflected in the premium.

3 Employers and Public Liability Claims (EL/PL) Below is a table outlining the number of claims received during the last 2 years, the provisions held and the amount of damages and costs paid out. Unlike Clinical Negligence claims all EL/PL claims are reported to the NHSLA and on the whole are concluded more quickly. Scheme Financial year Number of cases LTPS 2012/ /14 60 Provisions 2012/13 2,360, /14 2,158,505 Amounts paid 2012/13 521, /14 454,769 For 2013/14 the NHSLA are carrying an overall provision with a value of 2,158,505 split between the Trust and the NHSLA. The NHSLA are carrying a provision of 1,654,505 and the Trust are carrying an excess provision of 504, 000 (the NHSLA is liable for amounts over the excesses 10,000 for EL claims and 3,000 for PL Claims, the Trust is liable for amounts under the excesses). This shows a reduction in the number of claims being received and the amount paid out of 67,155. The reduction is also in light of the portal system which enables lower value claims to be dealt with quicker and claimant s costs are capped. Approximately 80% of both CNST and LTPS claims have previously been investigated as an incident and/or complaint. This information is identified by the Legal Services Department via the Safeguard System at the start of the investigation; all of the documentation is obtained to assist the investigation of the claim. This enables the Department to establish if there is merit to the claim with a view to early admissions, reporting to the NHSLA being undertaken or being able to defend. If the claim/inquest has previously been investigated as a High Level Incident this outlines the lessons learned in order to reduce the risk. Risk Management Previously, to improve patient safety, the NHSLA required Risk Management reports on all claims from solicitors who were instructed on behalf of the Trust. All Solicitors Risk Management Reports were sent to the Medical Director, for action, with a copy of the report being sent to the Head of Patient Safety and Risk Management and Head of Legal Services. These reports were reviewed with the relevant Division(s) and feedback provided on action taken to the NHSLA. At the beginning of each financial year the NHSLA sent a Risk Management Report on all the organisation s new and outstanding claims, and those resolved during the previous year, asking what action has been taken in relation to the claims listed.

4 As from April 2013 this system changed The NHSLA appointed a new Director of Safety, Learning and People to review changes with the objective of improving outcomes, reducing harm and improving patient and staff safety. The NHSLA are currently focused on improving outcomes. The NHSLA have started with profiling the NHS, care settings, specialities and organisation in order to identify the priority areas and the factors which contribute to claims. The Legal Services Department provide quarterly reports to each Division regarding Claims (both clinical and non-clinical) and Inquest activity. The reports inform the Division of the number of claims new, pending and settled/closed, a synopsis of the claim, date of incident, where the claim has previously been subject of an incident and/or complaint, if settlement made and/or discontinued, cost of settlement and action taken to mitigate future risks. This information is discussed within the Divisions Governance Forums. Information regarding clinical cases is also presented at the Trust s Patient Safety Forum. Monitoring and effectiveness of the Claims and Inquest Management Policy is collated and reported to the Operational Risk Management Committee. Individual cases and/or trends are highlighted to the Patient Safety Forum/Divisional Governance Committees for the Divisions to action and report back risk reduction measures to the forum. All non-clinical cases are reported to the Operational Strategic Health and Safety Committee in the same report format as the clinical cases. Such reports have included themes in respect of slips, trips and falls and manual handling which attract the highest number of claims received by the Trust. When reporting to the Committees the Divisions/Organisations are charged with reviewing the incidents/claims within their Division/Organisations and reporting back to the Committee with the action they have taken to reduce the risk in the future. The Department provides training to Divisions in respect of the Claims and Inquest activity and highlights the learning around investigations undertaken, whether the Claim or Inquest has previously been investigated, action taken and lessons learned. The Legal Department work closely with the Risk Management and Complaints Department with a view to reducing the cost of such activity and preventing future claims and harm to patients and staff. Inquests and Rule 43 s (now referred to as Rule 28 s) Currently the Department is managing 247 active Inquests. The number of new inquests opened in 2013/14 was 234 compared to 221 in 2012/13. Due to the new Coronial Changes which took place on the 25 July 2013 Coroners are working under a new statutory regime with new Rules and Regulations which means that they have to conclude these within six months. The only exception to this would be extraordinary cases that would involve more detailed investigation. This has impacted on the work undertaken by the Legal Services Department and upon medical staff across the Trust due to short timescales in which reports have to be prepared. Notifications are sent to the treating consultant that the case has been listed and that a report is required within eight weeks. Failure to supply the report in the time frame and/or attend the Inquest may result in a 1,000 fine, payable by the Consultant/clinician and not the Trust. The old Rule 43 has now been replaced with Rule 28. Coroners are required to report circumstances in which further deaths could occur if action is not taken to prevent them.

5 The Trust is required to give the coroner a written response regarding those circumstances, stating what action has been taken or an explanation why no action is required, within 56 days. Copies of coroners reports are now sent to all interested parties which may include the Care Quality Commission and published to raise awareness of lessons learned. In 2013/14 there were three areas of concern letters issued by the Coroner to the Trust however the Coroner concluded that there was insufficient evidence to justify issuing Rule 28 s in each of these. All Rule 28 s are publicised on the Ministry of Justice Website for the public to view. Recommendation The Board of Directors is asked to note the contents of this report.

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