Claims Management Procedure

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1 Claims Management Procedure Document Summary This procedural document describes the essential stages in the management of claims brought against the Trust. DOCUMENT NUMBER CO/POL/002/017/001 DATE RATIFIED 1 st June 2011 DATE IMPLEMENTED June 2011 NEXT REVIEW DATE June 2013 ACCOUNTABLE DIRECTOR POLICY AUTHOR Director of Performance and Company Secretary Deputy Director of Compliance Governance and Risk Important Note: The Intranet version of this document is the only version that is maintained. Any printed copies should therefore be viewed as uncontrolled and, as such, may not necessarily contain the latest updates and amendments.

2 TABLE OF CONTENTS 1 SCOPE INTRODUCTION STATEMENT OF INTENT DEFINITIONS DUTIES CHIEF EXECUTIVE THE DIRECTOR OF PERFORMANCE IMPROVEMENT AND COMPANY SECRETARY DETAILS OF THE PROCEDURE IDENTIFYING A CLAIM TIMESCALES FOR RESPONDING TO A CLAIM DEALING WITH A REQUEST FOR HEALTH RECORDS UNDERTAKING 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 PES CLAIMS ENTERING THE CLAIM ONTO THE CLAIMS DATABASE REPORTING TO THE NHSLA INVESTIGATING THE CLAIM LEVEL OF INVESTIGATION AND ROOT CAUSE ANALYSIS (RCA) TRACKING DOWN STAFF WHO NO LONGER WORK FOR THE TRUST TAKING STATEMENTS OBTAINING AN IN HOUSE EXPERT OPINION THE NEXT STEP VALUING THE CLAIM/ASSESSING QUANTUM COMPENSATION RECOVERY UNIT NEGOTIATING WITH THE CLAIMANT/REPRESENTATIVE (MEDIATION) WORKING WITH TRUST LEGAL ADVISORS CLAIMANT S PART 36 OFFERS STATEMENT OF TRUTH MAINTAINING PROPER REVIEW OF CLAIMS COMMUNICATION REMEDIAL ACTION TRAINING MONITORING REFERENCES/ BIBLIOGRAPHY RELATED TRUST POLICIES/ PROCEDURES Approved 01/06/2011 Page 2 of 28 Our Ref: CO/POL/002/017/001

3 APPENDIX 1 - PROPERTY EXPENSES SCHEME INCIDENT REPORT FORM. 20 APPENDIX 2 - GRADING MATRIX UTILISED TO GRADE CLAIMS Approved 01/06/2011 Page 3 of 28 Our Ref: CO/POL/002/017/001

4 1 SCOPE This procedural document describes the essential stages in the management of claims brought against Cumbria Partnership NHS Foundation Trust under the provisions of the NHS Litigation Authority Schemes (Clinical Negligence Scheme for Trust, Liability for Third Party Schemes, and Property Expenses Scheme). 2 INTRODUCTION This will ensure reciprocal cover is provided so that the Trust meets its statutory obligations with regard to the management of claims. This document sets out the basic steps to be followed by the Deputy Director of Compliance, Governance & Risk and/or the Compliance Governance & Risk Department once a claim has been notified. The procedures described in this document will be adopted for all claims made under these schemes, unless stated otherwise within the document. 3 STATEMENT OF INTENT The management of claims will be co-ordinated by the Deputy Director of Compliance, Governance & Risk, in conjunction with the NHSLA, Trust solicitors and designated Trust staff, in order to ensure appropriate resolution of all claims against the Trust. This procedure is to be used in line with POL/002/017 Claims Management Policy. The purpose of this document is to set out the Trust s procedure for investigating and responding to claims with regard to the management of Clinical Negligence Scheme for Trusts (CNST), the Liabilities to Third Parties Scheme (LTPS) and the Property Expenses Scheme (PES). 4 DEFINITIONS Claim allegations of clinical negligence and/or a demand for compensation made following an adverse clinical incident resulting in personal injury or any clinical incident which carries significant litigation risk for the Trust. This includes complaints leading to claims, notification of any serious and untoward incidents, incident reports generated by the Trust s risk management processes which represent a significant litigation risk and requests for the disclosure of medical records where an allegation of negligence giving rise to a personal injury has been intimated. Clinical Negligence a breach of duty of care by member of the health care professions employed by the NHS bodies in the course of employment, and which Approved 01/06/2011 Page 4 of 28 Our Ref: CO/POL/002/017/001

5 are admitted as negligent by the employer or are determined through the legal process. NHS bodies are liable at law for the negligent acts and omissions of their staff in the course of their NHS employment. Employer s Liability the Trust 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 working systems. The Trust may be liable to pay compensation to any employee for any injury or loss suffered as a result of a breach of their responsibilities. 5 DUTIES 5.1 Chief Executive As the accountable officer, the Chief Executive must ensure that responsibility to manage claims within the Trust is delegated to an appropriate executive lead, as outlined in the executive portfolios. 5.2 The Director of Performance Improvement and Company Secretary The nominated Executive who will ensure that there are robust systems in place to manage claims within the Trust. The Director is responsible for ensuring the Trust Board is kept informed of claims made against the Trust, the trends identified, and the risk management of those trends to ensure lessons are learned. 5.3 The Director of Finance Responsible for ensuring claims received are appropriated financed and the Risk Pooling Scheme is used effectively. 5.4 Deputy Director of Compliance, Governance & Risk Will have responsibility for handling claims and will be assisted by the Compliance Governance & Risk Department. 5.5 Clinical Director and Network / Locality Manager For the service concerned will be notified of all new claims together with the Lead Investigator for the claim. The Trust s Medical Director will be informed of the claim, if the clinical member of staff involved with the claim is no longer working at the Trust. The Clinical Director and Network/Locality Manager will receive a copy of the initial claims notification and will also be informed of key decisions on a case, i.e., admission of liability/case conferences and outcomes. 5.6 Operational Staff Deputy Director of Operations, Clinical Directors, Consultants, Senior Clinicians, Network, Locality and Service Managers are responsible for contributing to the Approved 01/06/2011 Page 5 of 28 Our Ref: CO/POL/002/017/001

6 management of individual claims and for ensuring that their staff are appropriately supported to provide a positive contribution to the claims management process. Implementation of appropriate corrective actions arising from claims investigations will be the responsibility of the respective Network/Locality or Service Manager. All staff have a responsibility to assist with the investigation, supply of information and progress of claims as required. Managers must work in accordance with Trust policies and ensure that, when deemed appropriate, staff are adequately supported following involvement in traumatic incidents, complaints, claims (including when staff are called as witnesses in courts), safeguarding children/adult issues and any other issues related to their roles. Clinical Directors Network Managers, Locality Managers and Services Managers will usually have a significant involvement with the claims process for clinical claims. Specific areas of responsibility can encompass: - Provision of initial information concerning any potential claim. Identification of any issues of liability for the Trust. Recommendations for the proposed management of a claim. Identification of risk management issues. Identification and implementation of any appropriate changes in practice. Responding to specific questions raised (Deputy Director of Compliance, Governance & Risk/Trust Solicitors/NHSLA). Review and respond to the Deputy Director of Compliance, Governance & Risk on any expert reports. Review and respond to the Deputy Director of Compliance, Governance & Risk on any specific allegations of negligence when proceedings issued. Provision of witness statements. Attendance at case conferences with counsel and Trial hearings when appropriate. 6 DETAILS OF THE PROCEDURE 6.1 Identifying a Claim 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). It should be noted that if the claim is received in the format of a LC the Approved 01/06/2011 Page 6 of 28 Our Ref: CO/POL/002/017/001

7 Trust only has three months in which to respond. 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: 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); 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 the Trust either for the compensation awarded, or for any of the costs generated. Such payments, if made by the Trust will fall outside the CNST - Clinical Negligence Scheme for Trusts - and could possibly result in criticism from auditors); HM Coroner s inquest where the standard of care in the Trust is criticised, especially where the relatives of the deceased patient have instructed lawyers for the hearing; A request for health records; A Writ (for High Court actions) or Summons and Particulars of Claim (County Court). Note: The Deputy Director of Compliance, Governance & Risk will be informed promptly of any incident/development/complaint etc., from whatever source, which suggests that legal action may result. The Deputy Director of Compliance, Governance & Risk will also routinely receive lists of all reported incidents in the Trust. 6.2 Timescales for responding to a claim The Claims Procedure document will operate in accordance with the Civil Procedure Rules 1999 and NHSLA Reporting Guidelines. For example, all claims should be reported to the NHSLA in accordance with their reporting guidelines within 24 hours, records should be provided within 40 days of the request; a preliminary analysis of the case should be completed within 40 days of receipt of the request for disclosure (CNST Reporting Guidelines); an acknowledgement of a Letter of Claim within either 14 or 21 days of receipt depending on the type of scheme. There are a variety of timescales that must be adhered to at all times with regard to reporting claims and requests for medical records. These vary depending on the type of scheme and are outlined in the sections below. Dealing with a request for medical records within 40 days; Approved 01/06/2011 Page 7 of 28 Our Ref: CO/POL/002/017/001

8 Reporting requests for access to medical records to the NHSLA within 2 months or sooner if appropriate; Reporting a new letter of claim to the NHSLA within 24 hours; Acknowledging a letter of claim (clinical Negligence) to solicitors within 14 days; Acknowledging a letter of claim (Employer/Public Liability). There are a number of other timescales that apply indirectly when managing claims for example around Civil Procedure Rules and The Department of Social Security s Compensation Recovery Scheme. 6.3 Dealing with a Request for Health Records All requests for disclosure of the health records are to be forwarded to the Compliance Governance & Risk Department, West Cumberland Hospital, Whitehaven. 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. Records must be disclosed within 40 days. When viewing records to authorise release, health professionals are asked to inform the Deputy Director of Compliance, Governance & Risk and/or the Compliance Governance & Risk Department if the record contains information which might possibly cause the requestor to commence a claim against the Trust. The Deputy Director of Compliance, Governance & Risk and/or the Compliance Governance & Risk Department must be notified, if a request has been submitted on the `pre-action protocol for when proceedings are contemplated. If a `disclaimer is not included within the request for health records, this will be sought and if not obtained, the Deputy Director of Compliance, Governance & Risk and/or the Compliance Governance & Risk Department will be informed as a `potential claim. 6.4 Undertaking a Preliminary Analysis Once notified of a serious incident/complaint/request for records, the Deputy Director of Compliance, Governance & Risk and/or the Compliance Governance & Risk Department should investigate and consider whether there is a significant risk of litigation. If it is felt that there is a significant risk of litigation, a 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 the Network / Locality. The preliminary analysis should normally be completed by Approved 01/06/2011 Page 8 of 28 Our Ref: CO/POL/002/017/001

9 the Deputy Director of Compliance, Governance & Risk and/or the Compliance Governance & Risk Department within 40 days of receipt of the request for disclosure of records, although priority must be given to disclosure of the records. Any incident forms/copies of complaints files etc. should be maintained by the Compliance Governance & Risk Department 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. Deputy Director of Compliance, Governance & Risk and/or the Compliance Governance & Risk Department 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 E) 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% above 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. Should a full investigation be required refer to Section 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 or any incidents which have incurred significant loss to the Trust. The NHSLA should be notified within two months of a request for records or sooner if the event is serious. Approved 01/06/2011 Page 9 of 28 Our Ref: CO/POL/002/017/001

10 The preliminary analysis should be forward to the NHSLA along with copies of all relevant documentation with a request to advise of further action required. 6.6 The Duties of Discovery Once litigation has been commenced (after Court proceedings have been issued and the pleadings stage has been completed), the 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. The Deputy Director of Compliance, Governance & Risk and/or the Compliance Governance & Risk Department will 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. 6.7 Identifying the Responsible Trust Using information contained in the LC (or other notification of a claim), confirms that the patient is or was a patient of the Trust at the relevant time: Always be alert to the possibility that the patient was not in fact being treated by the Trust when the negligence is said to have occurred, e.g. because he/she was the recipient of services provided on site by a neighbouring Trust. In this situation the patient or his/her representative should be asked for further 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). 6.8 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. Claims relating to incidents or other events occurring prior to 1 April 2011 and which are associated with Community Provider Services (which were formerly managed by NHS Cumbria), will be the responsibility of NHS Cumbria to manage. Such claims will be made against NHS Cumbria, not Cumbria Partnership Trust. 6.9 Acknowledging a New Letter of Claim Where there is a letter of claim (for CNST and LTPS claims), the letter of claim must be acknowledged to the claimant s solicitors within 14 days of receipt of letter. The NHSLA must be quoted as the Trust claims handling agency (insurers) who will be handling the case. The standard NHSLA claim report form must also be completed (Appendix 1). Approved 01/06/2011 Page 10 of 28 Our Ref: CO/POL/002/017/001

11 The letter of claim indicates that the formal legal process has commenced and there will be three months to respond formally, provided that the letter is Protocolcompliant (Woolf reforms). There should not be 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. There is a need to undertake preliminary analysis as in 6.3 (if not already undertaken). Notify relevant Network/Locality Manager/Head of Service, Compliance Governance & Risk and Finance Department 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 should be made for him/her to visit the Compliance Governance & Risk office or another suitable location within the Trust. Note: The visit must be supervised to ensure that no original documents are removed or defaced; 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 the Trust agreeing to copy and send them out within a few working days PES claims Events that cause significant loss to the Trust e.g. fire, flood and all property claims must be notified immediately in line with other claims and an incident report form completed if not already done. The Network/Locality Manager will prepare a report immediately for the Deputy Director of Compliance, Governance & Risk regarding the exact nature and cause of the damage or loss and statements obtained from any witnesses. The Deputy Director of Compliance, Governance & Risk will then pursue any follow-up action and investigation including reporting to the NHSLA in line with the Incident and SUI Reporting Policy. The Finance Department will be informed of the potential value of the claim. Invoices should be obtained through supplies where possible for the cost of purchase replacement of the property damaged. Consideration should be given to hidden costs relating to a claim such as overtime worked to rectify the damage/situation, cost of equipment hired e.g., dryers to dry a flooded room. This should be supported by documentary evidence and if appropriate, photographs 6.12 Entering the Claim onto the Claims Database As soon as notification of a claim has been received Compliance Governance & Risk will enter information on to the Trust database. Approved 01/06/2011 Page 11 of 28 Our Ref: CO/POL/002/017/001

12 6.13 Reporting to the NHSLA All claims must be reported to the NHSLA. This will be undertaken by Compliance Governance & Risk. The NHSLA must be kept fully informed of all developments during the life of a claim. From 1st 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 Deputy Director of Compliance, Governance & Risk and/or the Compliance Governance & Risk Department must adhere to the following process: Report claim to NHSLA within 24 hours (Claim Reporting Form); Enter new claim onto database; Acknowledge letter of claim within 14 days; Advise appropriate Network/Locality Manager of new claim (send copy of letter of claim); Advise Deputy Director of Compliance, Governance & Risk 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 relevant incident reports, risk assessments, root cause analysis, post incident reviews etc. (copy to NHSLA); Obtain any other relevant information e.g. ward staffing levels, bed occupancy, numbers of staff on duty who were C & R trained etc. 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. (The Deputy Director of Compliance, Governance & Risk and/or Approved 01/06/2011 Page 12 of 28 Our Ref: CO/POL/002/017/001

13 members of the Compliance Governance & Risk Department must be present at meeting); Forward any relevant documentation discovered during life of claim to NHSLA; Advise relevant members of staff, relevant Network/Locality Manager, Finance Department and Deputy Director of Compliance, Governance & Risk of NHSLA decision regarding 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 Deputy Director of Compliance, Governance & Risk and/or the Compliance Governance & Risk Department will pursue Level of investigation and Root Cause Analysis (RCA) All claims will be graded according to the Trust system which is outlined in Appendix 2. In addition to the estimation of quantum, an appropriate level of investigation will occur according to the grading applied. Where indicated, root cause analysis will be applied. For further information on grading see the POL/002/006/001 Incident and Serious Untoward Incident and Near Miss Reporting Policy. Root Cause Analysis is a method of incident investigation, with an emphasis on learning and change. In the unlikely event of a complaint or claim notification being received by the Trust, where there has not been an incident investigation, the investigating manager, in liaison with the Executive Director for the service area concerned, will determine whether a detailed investigation is required, in accordance with the POL/002/006/002 Untoward Incidents/Formal Complaints/Claims Investigation Policy Tracking Down Staff Who no Longer Work for the Trust Every effort should be made to track down all key staff in respect of each case. If any have left, Compliance Governance & Risk will contact the Human Resources Department and/or staffing agencies used by the Trust to find out where they have moved to. Managers will also speak to other staff members in an attempt to ascertain the individuals whereabouts. Where local information networks fail, the following will also be tried: The Medical Directory (published annually Churchill Livingstone); The GMC/NMC (providing details of the staff member s registration number); The medical defence organisations. Approved 01/06/2011 Page 13 of 28 Our Ref: CO/POL/002/017/001

14 6.17 Taking Statements After reviewing the records and receiving a preliminary report from the Healthcare Professional responsible for the patient, the Deputy Director of Compliance, Governance & Risk and/or the Compliance Governance & Risk Department should have a reasonable idea as to the members of staff involved in the treatment or care which is alleged to have been substandard. The panel solicitors appointed by the NHSLA may contact the Trust to request an interview with staff. Deputy Director of Compliance, Governance & Risk and/or members of the Compliance Governance & Risk Department must accompany the solicitor and remain present during the interview. The Deputy Director of Compliance, Governance & Risk and/or members of the Compliance Governance & Risk Department may take the opportunity to note any Risk Management issues which may arise during the interview. 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 Deputy Director of Compliance, Governance & Risk and/or the Compliance Governance & Risk Department. Statements must be forwarded to the NHSLA, or approved panel solicitors, 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 the Trust. This person should be someone who is not directly involved in the case that 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: 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. Offer to settle with NO admission of liability. 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 Approved 01/06/2011 Page 14 of 28 Our Ref: CO/POL/002/017/001

15 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. Seek an early opinion from an independent expert outside the Trust. Note: The NHSLA/panel solicitors will instruct independent experts. Take no further action pending further communication from the claimant/claimant s solicitor. 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 Valuing the Claim/Assessing Quantum It is helpful to the NHSLA if the Trust 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 E provides a basic guide to the task of assessing quantum Compensation Recovery Unit 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 Negotiating with the Claimant/Representative (Mediation) Mediation involves a trained mediator acting as go-between to facilitate settlement. This would only be undertaken at the instruction of the NHSLA Working with Trust Legal Advisors With all claims, the Deputy Director of Compliance, Governance & Risk and/or the Compliance Governance & Risk Department must inform the NHSLA immediately. The NHSLA may instruct a panel solicitor. Approved 01/06/2011 Page 15 of 28 Our Ref: CO/POL/002/017/001

16 Overall control of the management of the claim should remain with the Trust, as the 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 the Trust. If the 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 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 real 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 the NHSLA immediately, and the 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 Director of Performance & Company Secretary. In the absence of the Director of Performance & Company Secretary, another Trust Board executive will sign Maintaining Proper Review of Claims There must be an efficient system for reviewing all claims files at regular intervals, including: A pending system for active claims. This will help with chasing information requested from other departments. A periodic review of each active file, with a check on the value of the claim and the anticipated timing of any expenditure required. A time frame for archiving inactive claims Communication Good channels of communication are essential throughout the life of a claim. All staff who are directly involved in an allegation of negligence must be kept informed of the claim s progress. Approved 01/06/2011 Page 16 of 28 Our Ref: CO/POL/002/017/001

17 Members of staff should be encouraged to contact the Deputy Director of Compliance, Governance & Risk or the Compliance Governance & Risk Department for information, advice and support at any time. Lead clinicians should be consulted on the choice of experts with the expert reports shared with the clinicians. Network/Locality Managers should be informed when a new claim is received and when a claim reaches conclusion. The Deputy Director of Compliance, Governance & Risk should be informed of potential claims, new claims, risks highlighted during life of claims and outcome of claims. The Finance Department should be informed of new claims and the outcome of claims. Communication with the Trust Board Detailed reports on the progress of claims (including expected settlement dates and actual outcomes) must be provided at 6 monthly intervals to the Governance Quality & Risk Committee, which is accountable to the Trust s Board of Directors. Involving external agencies 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 General Medical Council, Nursing & Midwifery Council or other professional body may need to be informed. Incidents involving medical devices or consumable products should be notified to the Medicines and Healthcare Products Regulatory Agency (MHRA). Incidents involving Estate Services or equipment should be notified to NHS Estates by the Trust s nominated Estates Officer. Incidents of food poisoning should be notified to The Local Authority Department of Environmental Health and the Trust s Infection Control team. Please see the incident reporting policy for further information. The Deputy Director of Compliance, Governance & Risk will consult with the Director of Performance & Company Secretary to obtain authority for involvement of external agencies. Approved 01/06/2011 Page 17 of 28 Our Ref: CO/POL/002/017/001

18 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 form should be submitted to the NHSLA at the beginning of the claim. Close liaison should also be maintained with other stakeholders, such as the local primary care Trust, acute Trust where there are any areas of concern which affect this organisation should be brought to their immediate attention Remedial Action To reduce the potential for claims, good liaison with risk management, compliance, complaints managers 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. 7 TRAINING There is no mandatory training associated with this policy. Individuals training needs will be identified through annual appraisal and supervision. 8 MONITORING Monitoring of this procedure will be in accordance with the Claims Policy. 9 REFERENCES/ BIBLIOGRAPHY National Health Service Litigation Authority, Clinical Negligence Scheme for Trusts Reporting Guidelines (4th Edition) January National Health Service Litigation Authority, Property Expenses Scheme and Liabilities to Third Parties, Membership Rules (Willis) December National Health Service Litigation Authority, Non Clinical Claims Reporting Guidelines National Patient Safety Agency (NPSA) Approved 01/06/2011 Page 18 of 28 Our Ref: CO/POL/002/017/001

19 Pre-Action Protocols (Civil Procedure Rules). Published following reform of the civil Procedure Rules in 1999, the relevant protocols set out the requirements for claims management 10 RELATED TRUST POLICIES/ PROCEDURES POL/002/012 Risk Strategy POL/002/006/002 Untoward Incidents/Formal Complaints/Claims Investigation Policy POL/001/038 Organisational Learning Policy POL/002/006/001 Incident and Serious Untoward Incident and Near Miss Reporting Policy POL/002/002 Complaints policy and Resource Pack POL/002/008 Information Lifecycle and Records Management Policy POL/003/001 Standing Orders, Reservation and Delegation of Powers and Standing Financial Instructions POL/002/017 Claims Management Policy Approved 01/06/2011 Page 19 of 28 Our Ref: CO/POL/002/017/001

20 APPENDIX 1 - PROPERTY EXPENSES SCHEME INCIDENT REPORT FORM Office Use Only Claim No: Date: Please complete and return to: 5 Pemberton Row, London, EC4A 3BA Telephone: Fax A. Trust Details Name of Trust Address Post Code Membership No. Tel No. Tel No Contact Name (If different from above) B. Incident Details Date Exact Location Brief Circumstances of Incident Remedial action taken C. Witness Details (A) Name Grade Dept Address (if not staff) Approved 01/06/2011 Page 20 of 28 Our Ref: CO/POL/002/017/001

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