Claims Management Policy

Transcription

1 Plicy N: RM23 Versin: 5.0 Name f plicy: Claims Management Plicy Effective frm: 24/10/2012 Date ratified 20/07/2012 Ratified Patient Quality Risk and Safety Cmmittee Review date 01/07/2014 Spnsr Directr f Estates & Facilities Expiry date 19/07/2015 Withdrawn date This plicy supersedes all previus issues. Claims Management Plicy v5

2 Versin Cntrl Versin Release Authr / reviewer Ratified by / authrised by 1.0 Feb 2003 Bard f Directrs 2.0 Date 26/02/2003 Changes (Please identify page n.) 3.0 Nv 2006 Legal Services Manager Bard f Directrs Nv Jan 2009 Legal Services Manager PQRS Jan Feb 2010 Legal Services Manager Directr f Estates and Risk Management 05/02/ /10/2012 Legal Services Manager PQRS 20/07/2012 Change frmat int Trust plicy frmat Claims Management Plicy v5 2

3 Cntents Page 1. Intrductin Plicy scpe Aim f plicy Duties rles and respnsibilities Definitins The management f claims The rle f the NHS Litigatin Authrity Status and purpse Day t day management f claims Reprting guidelines CNST (Clinical Negligence Scheme fr Trusts) LTPS (Liabilities t Third Parties) Rle f the Legal Services Department Liaising with the NHSLA in the management f claims The use f legal advisers Infrmatin n claims Delegated financial respnsibility Risk management issues Grading f claims Risk level and level f investigatin and review Rt Cause Analysis Risk Management Reprts Claims management prcedure Pre-actin Prtcls Pre-actin Prtcl fr clinical negligence claims Pre-Actin Prtcl fr Persnal Injury Claims Pre-actin Prtcl fr Prperty Claims Investigatin f claims Investigatin f claims Principal aims f all investigatins Investigatin f a Clinical Negligence Claim Investigatin f a Persnal Injury Claim Investigatin f a claim relating t damage r lss f prperty Signing f legal defence dcuments n behalf f the Trust Clinical Negligence claims Risk Pling Scheme claims Prperty Expenses Scheme Remedial actin Instructing the NHSLA Resurces NHSLA aims, bjectives and functins Training Claims Management Plicy v5 3

4 8. Equality and diversity Mnitring cmpliance with the plicy Cnsultatin and review Implementatin f the plicy (including raising awareness) References Assciated dcumentatin Appendix 1 External rganisatins Claims Management Plicy v5 4

5 1. Intrductin CLINICAL NEGLIGENCE, PERSONAL INJURY AND PROPERTY CLAIMS POLICY AND PROCEDURE Gateshead Health NHS Fundatin Trust is cmmitted t effective and timely investigatin and respnse t any claim that includes allegatins f clinical negligence, persnal injury r lss r damage t prperty. The Trust will fllw the requirements f the NHSLA (Natinal Health Service Litigatin Authrity) in the management f claims. Every member f staff is expected t c-perate fully, as required, in the assessment and management f each claim. The Trust als aims t ensure that its plicies will be cmpliant with the Human Rights Act This plicy is based n current guidance frm the NHSLA. Any future changes in guidance will be fllwed and may supersede the prcedures laid dwn in this plicy. There are a number f claims which may nt fit the remit f the NHS Litigatin Authrity. These fall int tw categries and relate t persnal injury. The first is in respect t claims which arise in respect t injuries received prir t cmmercial insurance being available t the NHS. These are the respnsibility f the Strategic Health Authrity wh nw take ver the management f the claim. The secnd is in respect t claims fr which the Trust was cmmercially insured which will be managed by the relevant insurance cmpany in cnjunctin with the Legal Services Manager. 2. Plicy scpe The plicy cvers all Litigatin and ptential litigatin received by the Trust in respect t Clinical Negligence, Persnal Injury and Buildings and Cntents as well as all ther issues which fall within the cver prvided by the NHS Litigatin Authrity and Cmmercial Insurers prviding insurance cver t the Trust. 3. Aim f plicy T prvide a framewrk in rder t manage all litigatin against the Trust and t deal with any ther legal issues which may arise in respect t services prvided by the Trust. 4. Duties rles and respnsibilities Bard level respnsibility fr claims management Overall respnsibility fr risk management within the Trust rests with the Chief Executive wh will delegate this respnsibility n a day t day basis t the Directr Nursing, Midwifery and Quality. Respnsibility fr ensuring that prper arrangements are in place t deal with any clinical negligence, emplyer s liability, public liability and prperty claims which may arise rests with the Directr f Estates & Facilities wh will ensure that the Chief Executive, the Patient Quality, Risk and Safety Cmmittee and/r the Trust Bard are kept advised f all majr develpments in this area. Claims Management Plicy v5 5

6 Directr f Estates and Facilities The Directr f Estates & Facilities will delegate respnsibility fr the day t day management f claims t the Legal Services Manager. The Legal Services Manager The Legal Services Manager is respnsible fr the cnduct, cntrl and dcumentatin f all claims and ptential claims. The Claims Management Prcedure will be triggered by the receipt f all new claims, crrespndence indicating that a claim is t be investigated r cnsidered, Letter f Claim r Curt Prceedings and/r the ntificatin f a ptential claim. The Guidelines fr Investigatins detail the triggers fr investigatins/rt cause analysis. The Legal Services Manager will carry ut such preliminary actin, investigatins and analysis f reprtable claims as is required by the NHSLA and will liaise with the NHSLA as necessary ver the cnduct f such claims. The Legal Services Manager will ensure that there is liaisn with the relevant line manager if crrective/remedial actins are required. Arrangements will be made t ensure that in the absence f the Legal Services Manager essential claims management activities will be carried ut. The legal services department See paragraph 6.4 belw. Medical Directr The Medical Directr will be advised f all clinical claims. He will be respnsible fr the apprval f Defence dcuments in respect t all clinical claims where admissins are t be made. He will be infrmed whenever it becmes necessary t make admissins as t liability in Letters f Respnse in respect t clinical claims. Divisinal directrs/clinical leads Divisinal directrs/clinical leads will be advised f all clinical claims arising within their divisin/department. They may be required t prvide in-huse clinical pinins in respect t the validity f specific claims. Divisinal managers/heads f service Divisinal managers/heads f service will be advised f all claims affecting their divisin/department. In respect t clinical claims they will be respnsible fr ensuring that apprpriate actin is taken in respect t any issues that are identified during the curse f the investigatin. In respect t persnal injury claims divisinal managers/heads f service will cmpile the required dcumentatin fr disclsure and will prvide this t the Legal Services Manager in a timely manner. They will als ensure that, when apprpriate, staff are made available fr interview by the claims manager r claims investigatr frm the NHS Litigatin Authrity. Claims Management Plicy v5 6

7 All emplyees All emplyees f the Trust have a cntractual respnsibility t assist the Legal Services Department in the investigatin f claims, bth clinical and nn clinical. The NHS Litigatin Authrity See paragraph 6.1 belw. 5. Definitins Definitins are set ut, as required, within the bdy f the plicy 6. The management f claims 6.1 The rle f the NHS Litigatin Authrity Status and purpse The Natinal Health Service Litigatin Authrity (the Authrity) is a Special Health Authrity set up under Sectin 11 f the NHS Act Its date f cmmencement was 21 st Nvember The principal task f the Authrity is t administer schemes set up under Sectin 21 f the Natinal Health Service and Cmmunity Care Act This enables the Secretary f State t set up ne r mre schemes t help NHS bdies pl the csts f any lss f r damage t prperty and liabilities t third parties fr lss, damage r injury arising ut f the carrying ut f their functins. There are currently five schemes: A scheme cvering liabilities fr alleged clinical negligence 1 where the riginal incident ccurred n r after 1 st April 1995 (the Clinical Negligence Scheme fr Trusts r CNST); A scheme cvering liabilities fr clinical negligence incidents which ccurred befre that date (the Existing Liabilities Scheme r ELS); A scheme cvering the utstanding liabilities fr clinical negligence in respect f the frmer Reginal Health Authrities; A Scheme relating t any liability t any third party where the riginal incident ccurred n r after 1 April 1999 (the Liability t Third Party Schemes r LTPS); 1 A clinical negligence liability is defined fr the purpse f this dcument as any liability in trt wed t a third party in respect f r cnsequent upn persnal injury r lss arising ut f r in cnnectin with any breach f a duty f care wed by that bdy t any persn in cnnectin with the diagnsis f any illness, r the care r treatment f any patient, in cnsequence f any act r missin t act n the part f a persn emplyed r engaged by [an NHS trust r health authrity] in cnnectin with any relevant functin f that [bdy] See regulatin (4) f the NHS (Clinical Negligence Scheme) Regulatins SI. 1996/251 Claims Management Plicy v5 7

8 A scheme relating t any expenses incurred frm any lss r damage t prperty where the riginal lss ccurred n r after 1 st April 1999 (the Prperty Expenses Scheme r PES). Fr the purpse f this dcument, the five schemes are referred t tgether as the Schemes. 6.2 Day t day management f claims On a day t day basis, lcal respnsibility fr dealing with all claims against the Gateshead Health NHS Fundatin Trust will rest with the Legal Services Manager. The Directr f Estates and Facilities Management The Legal Services Manager will make arrangements fr the day-t-day handling f claims in accrdance with agreed Trust prcedures and NHS Litigatin Authrity guidelines. 6.3 Reprting guidelines CNST (Clinical Negligence Scheme fr Trusts) Under the CNST Reprting Guidelines, Octber 2008, when a significant litigatin risk has been established and a realistic valuatin f a pssible claim as been made, the matter becmes reprtable t the NHSLA. One f a number f pssible situatins may arise: Incidents reprted which are graded red (NPSA Reprting Prcedures) that reveal a pssible breach f duty leading t a ptential large value claim (damages ver 250,000) must be reprted as sn as pssible, usually befre a claim is made. (i.e. Befre a Letter f Claim r Prceedings are received) Incidents which have the ptential t becme a grup actin invlving a number f patients (eg failure f screening services) Claims arising frm the alleged negligence r serius prfessinal miscnduct f a clinician r team which has affected a grup f patients. Claims arising frm a cmplaints investigatin where the respnse, n the facts, indicates that an admissin f liability has been implied. Requests fr disclsure f recrds where the preliminary analysis indicates the pssibility f a claim with a significant litigatin risk, regardless f value. Letters f claim as the first indicatin f any actin. The receipt f curt prceedings Claims Management Plicy v5 8

9 Every effrt will be made t ensure that ptential claims are brught t a satisfactry cnclusin withut the necessity f a curt hearing, by means f discussin, negtiatin and, if applicable, mediatin LTPS (Liabilities t Third Parties) Under the RPST Reprting Guidelines all claims which are abve the Trust excess (Staff claims 10,000, ther Persnal injury claims 3,000) are reprtable t the NHS Litigatin Authrity and must be accmpanied by a cmpleted dcument list and LTPS reprt frm. Claims which fall belw the NHSLA excess may be managed in huse by the Trust. 6.4 Rle f the Legal Services Department The Legal Services Department will: be respnsible fr maintaining a lg f all new claims received Infrm the Cmplaints Manager f the receipt f all claims t enable any cmplaint dcumentatin t be prvided fr disclsure. If a cmplaints file exists all cmplaints wrking papers will be btained frm the persn cnducting the investigatin. Be respnsible fr ensuring that the Pre-Actin Prtcl fr the Reslutin f Clinical Disputes is fllwed, including respnding t Letters f Claim and frwarding them t the NHSLA, within the time scales laid dwn. Ensure the disclsure f medical recrds, within the time scales laid dwn, in the Data Prtectin Act 1998 r the Access t Health Recrds Act 1990 as applicable. Receive, acknwledge and prcess all new ptential claims that arise against Gateshead Health NHS Fundatin Trust. Identify and arrange fr the preservatin f relevant recrds and ther items, such as equipment invlved in incidents, etc. Make certain initial investigatins have been made and a preliminary analysis has been dne. Reprt ptential claims t the NHSLA in accrdance with their reprting guidelines. Establish and, as necessary, maintain cntact with relevant staff and frmer staff. Obtain in-huse expert and clinical advice as necessary. Claims Management Plicy v5 9

10 Identify if there are any reprting requirements t external rganisatins and whether such rganisatins shuld be invlved in the investigatins/rt Cause Analysis. This may include rganisatins as detailed within appendix 1 f this dcument. External agencies may need t be invlved fr example: The Health & Safety Executive where a RIDDOR reprt had been made relating t the riginal incident Crner where the claim relates t a fatality Plice where a criminal ffence has ccurred r is suspected Prfessinal regulatry bdies where allegatins f negligence are invlved. This list is nt exhaustive. Where claims have initially been investigated as a result f an incident reprt, apprpriate external agencies will have been invlved at that stage. In terms f new claims where investigatins have nt yet been carried ut, the circumstances f each individual case will determine which external agencies shuld be brught int the investigatin and reprting prcess and when. If a claim is cnsidered t be justified and admissins need t be made the fllwing delegated limits will apply t the authrisatin f the Litigatin Authrity t make such admissins. The same limits will apply t authrisatin f settlement f claims which are nt gverned by the NHSLA prcedures (e.g. Insurance Claims) Clinical Claims Wherever pssible authrisatin will be btained frm the Medical Directr r ne f the deputies befre any admissins f liability are made fr all claims valued in excess f 25,000. Fr claims belw this value the Legal Services Manager has delegated authrity t make admissins. L.T.P.S. Claims Fr all nn clinical claims the ultimate decisin as t whether admissins will be made rests with the NHS Litigatin Authrity. This infrmatin will be relayed t the apprpriate executive directr / divisinal manager as sn after a decisin is reached as pssible. Legal expenses Mst legal expenses arising frm claims will be met directly by the Litigatin Authrity. Frm time t time, hwever, the Trust may need t incur legal expenses in its wn right. In such circumstances (e.g. Inquests and btaining miscellaneus legal advice) the fllwing delegated limits will apply: Legal Services Manager up t 10,000 Directr f Estates & Facilities up t 25,000 Claims Management Plicy v5 10

11 Over 25,000 authrisatin will be in accrdance with Financial Standing Orders In the event f disagreement abut prpsed admissins f liability in clinical claims, r if there are issues f sensitivity r anticipated repercussins, it is the respnsibility f the Legal Services Manager t bring this t the attentin f the Directr f Estates & Facilities. Attend with the Trusts legal advisers, any Directins hearing befre the District Judge arising frm the defence f a claim and any ther curt attendances as required. Arrange fr the ntificatin f a Lsses Reprt Frm f all payments made in settlement f persnal injury claims (e.g. public and emplyers liability) in rder t allw them t be entered int the Trusts register f lsses and special payments. Where the payment has been partially funded frm the Trusts insurers r the NHS Litigatin Authrity this will be nted in the register. Where a claim is settled ut f curt under the Trusts delegated pwers fr a sum in excess f 1,000 arrangements will be made fr cmpletin f the checklist recmmended in EL(96)11 Annex C. In the event that it is deemed apprpriate t defend a claim t trial the Legal Services Manager will ensure that the witnesses are ntified f trial dates and ensure that they are supprted thrugh the prcess f giving evidence in a curt setting. 6.5 Liaising with the NHSLA in the management f claims. It is the Legal Services Manager s rle t prepare reprts and ther submissins as required fr the NHSLA, SafeCare Cuncil, and/r Patient Quality, Risk and Safety Cmmittee and/r Trust Bard if required. Preparing regular reprts n: The number and aggregate value f claims and details f any individual claims The prgress and likely utcme f these claims, including the expected settlement date, if pssible The final utcme f the claim Any prpsed remedial actin arising ut f a particular claim. Claims Management Plicy v5 11

12 Supprt staff invlved in the litigatin prcess. Ensure that risk management issues arising frm claims are shared as necessary with the Head f Risk wh will ensure that they are entered nt the Trust Risk Register. Ensure that Trust wide issues are shared within Safecare Cuncil and/r Patient Quality, Risk and Safety Cmmittee. Ensure that lessns learned in the prcess f claims management are used fr risk management purpses in the cntext f future service prvisin. Liaise with the Head f Cmmunicatins as necessary where there is a pssibility f publicity ccurring. 6.6 The use f legal advisers Slicitrs will be instructed by the Trust t prepare preliminary analysis dcuments. Thereafter defence slicitrs will be instructed by the NHS Litigatin Authrity except fr cases which d nt fall within the NHSLA schemes when judgement as t when slicitrs are appinted will be made by the Legal Services Manager. 6.7 Infrmatin n claims The Legal Services Manager will establish and maintain a database f all claims relating t the Trust, including infrmatin abut the nature f each claim, financial data and ther infrmatin. This database will assist the Legal Services Manager t prvide relevant and timely infrmatin as required either by, the Safecare Cuncil, the Patient Quality, Risk and Safety Cmmittee r the NHSLA. Due regard will be paid t the cnfidentiality f data relating t individuals. Data will be prcessed in cmpliance with the Data Prtectin Act Delegated financial respnsibility The NHSLA has respnsibility fr the financial management f all clinical negligence claims. It als has respnsibility fr the financial management f all reprtable LTPS and PES claims abve the designated excess levels. All payments in settlement f persnal injury claims will be entered in summary frm in the register f lsses and special payments by the NHSLA. Any cntributins frm the NHSLA (LTPS r PES) will be nted in the register. (See als 6.4) Claims Management Plicy v5 12

13 6.8 Risk management issues All staff are expected t c-perate fully in risk management issues. All clinical and nn-clinical incidents will be reprted prmptly in accrdance with RM04 the Incident Reprting and Investigatin Plicy (including Serius Untward Incident Plicy). Where it is thught that there may be a pssibility that a claim against the Trust may fllw, the Legal Services Manager will be ntified immediately. Fr all such ptential claims, a rt cause analysis shuld be carried ut with witness statements. All infrmatin shuld be sent t the Legal Services Manager. High standards f recrd keeping dcumentatin are essential in clinical recrds t ensure that the facts are available in the event f a claim being made. When staff are asked t prvide reprts, statements r cmments, they will be reminded as necessary n whether their reprts are ptentially disclsable in the event f a claim prceeding Grading f claims The Legal Services Manager shuld be able t arrange fr all claims t be graded, taking int accunt the riginal incident reprt, any cmplaints issues and the utcme f the investigatin. All f the claims shuld be graded accrding t: Actual severity taking accunt f the seriusness f the harm caused as well as the financial implicatins f the claim. Future risk t patients. Future risk t the rganisatin. Likelihd f claimant success. Grading may be subject t change n the receipt f expert reprts r as further infrmatin cmes t light Risk level and level f investigatin and review If the incident (leading t the claim) was previusly reprted as an adverse incident, an investigatin and/r a Rt Cause Analysis shuld already have been undertaken with the results being presented t the Safecare Cuncil/PQRS Cmmittee fr remedial actin t be taken and mnitred, if apprpriate. Claims Management Plicy v5 13

14 6.8.3 Rt Cause Analysis The Legal Services Manager will adpt a rt cause analysis apprach t all investigatins, which might lead t claims. The purpse f cnducting a Rt Cause Analysis f ptential claims is t identify the real causes f the incident and t establish legal causatin. Rt Cause Analysis can als reveal underlying system failures and ther cntributry factrs that may have had an impact n the incident. In line with natinal requirements the Trust is applying a rt cause analysis apprach t investigatins int adverse incidents, cmplaints and claims. Further infrmatin is cntained in the Trusts Incident Reprting and Investigatin Plicy. Infrmatin n risk management issues arising and imprvements undertaken will be reprted t the Safecare Cuncil and/r the Patient Quality, Risk and Safety Cmmittee Risk Management Reprts The NHSLA annunced in 2010 that Risk Management reprts wuld be prvided t Trusts by panel slicitrs where risks are identified and remedial actin required. In the event that such reprts are received and actin is required a cpy f the reprt will be sent t the clinician invlved, the Divisinal Directr and thedivisinal Manager wh will be required t frmulate an actin plan t remedy the prblem. The Head f Risk will be prvided with a cpy f the reprt and actin plan. Outcmes will be reprted t PQRS. 6.9 Claims management prcedure The Legal Services Manager will be respnsible fr the fllwing actins: (see als paragraphs 3.4 and 6.2) Pre-actin Prtcls The Gateshead Heath NHS Fundatin Trust recgnises and will at all times adhere t the pre-actin prtcls fr the reslutin f clinical disputes and persnal injury claims, in the interests f: Encuraging a climate f penness when smething has gne wrng with a patient s treatment r the patient is dissatisfied with that treatment and/r the utcme. Encuraging the adptin f a cnstructive apprach t cmplaints and claims, and accepting that cncerned patients are entitled t an explanatin and an aplgy if warranted, and t apprpriate redress in the event f negligence. Claims Management Plicy v5 14

15 Building n and increasing the benefits f early but well infrmed settlement which genuinely satisfies bth parties t dispute Pre-actin Prtcl fr clinical negligence claims Obtaining the health recrds: The patient and/r their legal adviser may request cpies f the patient s clinical recrds (which includes any recrds nt held in the main file a well as x-rays, CT scans, test results etc). The request shuld be made in writing t the Trust. These requests shuld adhere t the Department f Health guidelines and shuld when prperly cmpleted cnstitute satisfactry evidence fr the Trust purpses f the patient s cnsent fr the release f their recrds t their legal and ther expert advisrs. This can be in the frm f a pre-actin prtcl Letter befre Actin. The Trust must prvide cpy recrds within 40 days f this request. In the rare circumstances that the Trust is unable t cmply with a request within 40 days, the prblem shuld be explained t the patient r their representative quickly, and details given f what is being dne t reslve it. If the recrds are nt prvided t the patient r their representatives within 40 days the patient can apply t the curt fr an rder fr preactin disclsure. This will have adverse cst cnsequences fr the Trust. Letter f Claim If the patient decides that there are grunds fr a claim, they r their slicitrs may send a Letter f Claim t the Trust. The Letter f Claim shuld cntain a clear summary f the facts n which the claim is based, including the alleged adverse utcme, and the main allegatins f negligence. It shuld describe the patient s injuries, the present cnditin and prgnsis, and the estimated financial lss incurred by the claimant. In mre cmplex cases a chrnlgy f the relevant events shuld be prvided. Sufficient infrmatin shuld be given t enable the Trust t cmmence investigatins if it has nt already dne s and fr the NHSLA t put an initial valuatin n the claim. The Letter f Claim shuld be acknwledged by the Trust immediately and then frwarded t the NHSLA, as they will have t make an initial respnse within 14 days f receipt. Under a set prtcl, the claimant shuld nt issue prceedings until after 4 mnths frm the date f the Letter f Claim, unless there is a limitatin issue and/r the patient s psitin needs t be prtected by Claims Management Plicy v5 15

16 early issue but there will be ccasins when this stage will be mitted and prceedings will be issued. Letter f respnse The Trust will cntinue t investigate the claim in cnjunctin with the NHSLA and within 4 mnths f the Letter f Claim prvide a reasned answer t it in the frm f a Letter f Respnse. The NHSLA will liaise with the Trust t determine which issues f breach f duty and/r causatin are admitted and which are denied and why. Dcuments must be enclsed which are material t the issues in dispute and which wuld be likely t be rdered t be disclsed by the curt during prceedings. The Letter f Respnse may be drafted by the NHSLA the Trust r the legal advisers appinted by the NHSLA. If admissins are t be made apprval fr the letter will be btained frm the Trust Medical Directr r ne f his deputies. It shuld be nted that admissins made in a Letter f Respnse are binding Pre-Actin Prtcl fr Persnal Injury Claims Letter f Claim Receipt f a Letter f Claim is likely t be the first indicatin the Trust receives f a ptential persnal injury claim 2. The Trust will acknwledge the Letter f Claim within 21 days, cnduct an immediate investigatin int the issues raised. It must be frwarded with the utcme f the investigatins and a cmpleted dcument list as per the NHSLA guidelines, within 28 days if pssible but in any event within 42 days. The NHS Litigatin Authrity will refuse t accept the claim if the dcument list is nt attached and the required dcuments nt included. Under the prtcl, the claimant shuld nt issue prceedings until after 3 mnths frm the date f the Letter f Claim, unless there is a limitatin issue. Letter f Respnse The NHSLA will cntinue t investigate the claim in cnjunctin with the Legal Services Manager and within three mnths f the acknwledgement f the claim prvide a reasned answer t it in the frm f a Letter f Respnse. If liability is denied, reasns must be given fr the denial, and dcuments must be enclsed which are material t the issues in dispute and which wuld be likely t be 2 The accident may have been reprted in accrdance with the Gateshead Heath NHS Fundatin Trusts Incident Reprting Plicy r Serius Untward Incident Plicy and Prcedures. Claims Management Plicy v5 16

17 rdered t be disclsed by the curt during prceedings. If liability is t be admitted this must be agreed by the Legal Services Manager. The letter f respnse will usually be drafted by the NHSLA but the Legal Services Department may be requested t draft the respnse n ccasins. Admissins made in a Letter f Respnse are binding fr all claims Pre-actin Prtcl fr Prperty Claims There is as yet n NHSLA prtcl fr prperty damage nly claims but the curts will expect the parties t act in the spirit f the persnal injury prtcl which will be applied by the Trust. Claims fr damage r lss f prperty will be handled in accrdance with the Liabilities t Third Parties Scheme (administered by the NHSLA). Damage, lss r destructin f the Trusts prperty will be investigated and reprted in accrdance with the Prperty Expenses Scheme (PES) (administered by the NHSLA) 6.10 Investigatin f claims Investigatin f claims The receipt f any f the fllwing will trigger an investigatin: A request fr recrds pursuant t the pre-actin prtcl fr clinical negligence disputes which intimates a claim against the Trust; r A Letter f Claim; r A Claim Frm. Internal investigatins must be cmmenced immediately upn receipt f ne f the abve. The aim f the initial investigatin will be t determine whether the claim has any merit and will assist the Legal Services Manager t cnsider whether further in depth investigatin is required by way f rt cause analysis. An early decisin may be made t investigate an incident r cmplaint which is brught t the attentin f the risk management Team as a serius untward event which may result in a claim at a future pint in time. The Legal Services Manager shuld be ntified during the curse f the regular CLIPA meetings f any incident r cmplaint that culd result in a claim. Very serius claims are likely t have been the subject f an adverse incident reprt in accrdance with the Trust s Incident Reprting, Serius Untward Incident and/r Cmplaints Claims Management Plicy v5 17

18 Plicies. The NHSLA will link int that investigative prcess if that prves t be apprpriate Principal aims f all investigatins The principle aims f any investigatin will always be as fllws: T identify the full names and titles f all staff invlved; T establish an accunt f the riginal incident; T identify r maintain all written recrds; and T establish and maintain cntact with the staff invlved and t btain an in-huse expert pinin. The Legal Services Manager will then pursue further investigatins n behalf f the NHSLA depending n whether the claim is fr clinical negligence, persnal injury r prperty damage r lss Investigatin f a Clinical Negligence Claim Legal Services will seek infrmatin frm all staff wh have been invlved in the relevant episde f care. The bjectives f this will be t gain apprpriate infrmatin as set ut abve by; Obtaining preliminary cmments frm all ptential witnesses; Obtaining authrity t release the medical recrds t the claimant; Obtaining details f any incidents and any ther similar incidents. Ntifying the risk management team if risk management issues are identified t enable them t; Identify the steps required t avid a repeat incident and agree a plan fr crrective actin; Identify a time scale fr the implementatin f crrective actin; and Ntify the relevant divisinal manager t ensure apprpriate actins t are taken where necessary Taking an initial view n liability and then seeking the views f the Trust legal advisers if apprpriate. Ensuring that further in depth investigatin/rt cause analysis is cnducted if it is deemed apprpriate frm the initial findings. Claims Management Plicy v5 18

19 Arranging meetings between slicitrs and clinical staff where this is deemed apprpriate fr the investigatin Investigatin f a Persnal Injury Claim. The Legal Services Department will btain the incident reprt frm relating t the incident and will cnduct an initial investigatin as fr clinical negligence claims and will then reprt the claim t the NHS Litigatin Authrity wh will cntinue the investigatin. There is n requirement t reprt the claim t the NHSLA if it falls belw the Trust excess. In these circumstances the Trust Legal Services Manager may retain cnduct f the claim. The NHSLA Claims Investigatr will arrange a meeting via the Legal Services Manager with the apprpriate manager, r head f department, the line manager and any ther relevant witnesses. The bjectives f the meeting will be as set ut abve and t: Obtain preliminary cmments frm all ptential witnesses. If these have nt already been btained by the Legal Services Manager and in any event t crrbrate the cntent theref. Cnfirm with the Legal Services Manager that all relevant dcumentatin has been disclsed and t explre whether any ther relevant dcuments might exist. Obtain details f similar incidents and in discussin with the Legal Services Manager decide whether any risk management issues have been identified. Decide, in cnjunctin with the Legal Services Manger whether liability rests with the Trust and agree n what actins will be taken in the immediate future Investigatin f a claim relating t damage r lss f prperty Investigatins in respect f damage r lss f prperty will be carried ut by the Legal Services Manager, head f service and any ther apprpriate persn. The bjectives f the investigatin will be as set ut abve and t: Obtain preliminary cmments frm all ptential witnesses; Obtain the relevant dcumentatin which may include cpies f any incident reprt frms, the RIDDOR reprt t HSE, any ther health and safety dcumentatin, risk assessments r phtgraphs. This list is nt cnclusive and further dcumentatin may be required depending n the facts f the case; Claims Management Plicy v5 19

20 Obtain details f similar incidents and decide upn and create an actin plan fr crrective actin. Cnduct a rt cause analysis if this is deemed t be apprpriate. Once the claim is reprted t the NHS Litigatin Authrity a lss adjuster will be appinted t cnduct an independent investigatin. This will be arranged via the Legal Services Department wh will make the necessary arrangements fr meetings with the apprpriate persnnel Signing f legal defence dcuments n behalf f the Trust During the curse f defending a claim it will be necessary fr sme dcuments including Defence dcuments t be signed n behalf f the Trust. In summary they will be handled as fllws: Clinical Negligence claims Statements f Truth Defence dcuments All statements f truth n defence dcuments will be signed by the Medical Directr r ne f his deputies. In the absence f the Medical Directr r ne f his deputies defence dcuments, which make admissins, will be signed by an Executive Directr. Where n admissins are made, this may be delegated t the Legal Services Manager. Statements Statements f truth n individual statements will be signed by the persn whse statement is required Other legal dcuments Statements f truth n ther legal dcuments may be signed by the Legal Services Manager but this may be delegated t the Trust s legal advisers as at Curt dcuments belw. Disclsure statements Statements cnfirming that all disclsure has been affected will be signed by the Legal Services Manager n behalf f the Trust Curt dcuments Legal dcuments required by the curts will nrmally be signed by the Legal Services Manager but this may be delegated t the Trusts legal advisrs fllwing discussins with the Legal Services Department. Claims Management Plicy v5 20

21 Risk Pling Scheme claims Statements f Truth Defence dcuments The Directr f Estates & Facilities will sign the Statement f Truth n all defence dcuments. In the event that the Directr f Estates & Facilities is nt available anther executive directr will be required t sign the dcument whenever admissins are t be made. Where n admissins are t be made this may be delegated t the Legal Services Manager Statements Statements f Fact will be signed by the individual fr whm the statement has been written Disclsure statements Statements cnfirming that all disclsure has been effected will be signed by the Legal Services Manager n behalf f the Trust Curt Dcuments Legal dcuments required by the curts will nrmally be signed by the Legal Services Manager but this may be delegated t the Trusts Legal Advisrs fllwing discussins with the Legal Services Department Prperty Expenses Scheme 6.12 Remedial actin All arrangements will be as abve Because f the nature f litigatin it is ften the case that by the time a claim is indicated all necessary remedial actins have been carried ut. Mst claims fr which the Trust is deemed t be liable will have had thrugh investigatins ften befre a claim has been intimated. Risk issues will be identified and shared at the Safecare Cuncil and Patient Quality, Risk and Safety Cmmittee and, if apprpriate, the relevant directrate will be requested t prvide a plan fr any required actins prir t the clsure f the claim file Instructing the NHSLA It is a requirement that the Trust must btain advice frm the Trust slicitrs r the NHS Litigatin Authrity fr all claims. The Trust may instruct the NHSLA t act n its behalf n receipt f any persnal injury claim and fr all clinical negligence cases they must be invlved nce a Letter f Claim r Prceedings are received. Claims Management Plicy v5 21

22 Legal advice received frm the Trust Slicitrs r NHSLA shuld always deal with Breach f Duty, Causatin, an assessment f the strength f the Defence n the balance f prbability, the quantum f damages including a best and wrst case scenari and the likely csts f defence. The Trust will c-perate with the NHSLA at all times, and the Legal Services Manager will respnd t requests fr further infrmatin and will ensure that the NHSLA r slicitrs directly instructed by them are in a psitin t meet the Curt s timetable fr cnduct f a claim. The NHSLA shuld prvide quarterly updates n the prgress f all claims Resurces The NHS Litigatin Authrity will be respnsible fr: Expenditure n the schemes whether centrally resurced i.e. funded by the Department f Health r by cntributins frm members. The csts f administering the schemes and any additinal tasks as specified. Invicing the Trust in respect t their handling fees and sub excess fees NHSLA aims, bjectives and functins Aims and bjectives The Secretary f State s verall aims fr the Authrity in administering the Schemes are t prmte the highest pssible standards f patient care and t minimise the suffering resulting frm any adverse incidents, which d nevertheless ccur. In particular, the Authrity will cntribute t these aims by its efficient, effective and impartial administratin f the Schemes and by advising the Secretary f State n any changes that may be needed in the light f experience in running the Schemes and f changing circumstances. Subject t this verriding aim the specific bjectives f the Schemes are set ut belw. The Human Rights Advice and Infrmatin Service is intended t minimise the cst t the NHS f btaining legal advice in relatin t the Human Rights Act 1998, by prviding NHS bdies with access t a centrally c-rdinated infrmatin service. Maximising resurces available fr patient care T minimise the verall csts f clinical negligence, third party liabilities and prperty expenses t the NHS and thus maximise the resurces available fr patient care, by defending unjustified actins rbustly, settling justified actins efficiently, and cntributing t the Claims Management Plicy v5 22

23 incentive fr reducing the number f negligent r preventable incidents. Prper payments T assess the amunts (if any) t be paid by each f the Schemes in relatin t any particular claim, and t ensure that sums paid ut are prperly s paid. Impact n patient care and NHS csts T minimise the risk that patient care in a particular cmmunity is jepardised by a large settlement against a lcal NHS bdy. T spread the csts f settlements mre evenly ver time. Incentives t imprved quality T cntribute t the imprvement f the quality f patient care by prviding incentives within the schemes fr NHS bdies t imprve cst effective clinical and nn clinical risk management (excluding mtr insurance), and by disseminating relevant infrmatin n clinical and nn clinical risks highlighted by claims management experience. T maximise the incentive fr NHS bdies t ensure they cntribute effectively t gd quality imprved claims management. T develp and where apprpriate prvide educatin, training and develpment aimed at prmting the skills and cmpetencies required fr gd claims handling and risk management fr NHS emplyees. Access t apprpriate remedies fr genuine litigants T ensure that, where liability has been established, patients r their representatives have apprpriate access t remedies including, where prper, financial cmpensatin. Functins The main functin f the Authrity in seeking t fulfil these bjectives will be t administer the Schemes set up under Sectin 21 f the NHS and Cmmunity Care Act 1990, efficiently and effectively n behalf f the Secretary f State fr Health and with due regard t the interests f Scheme members, ther NHS bdies, NHS staff, and users f the NHS. In particular, the Authrity will: Determine peratinal plicy fr the Schemes; Determine standards f risk management and claims handling fr Scheme members (and NHS bdies generally), and s manage the Schemes s as t encurage the adptin f these standards thrughut the NHS; Claims Management Plicy v5 23

24 Wrk clsely with the Department f Health and any relevant nn-departmental public bdy r arms length bdy in relatin t perfrmance and risk management in NHS bdies; Ensure the risk management standards develped by the Authrity are cmplementary t the Department f Health s cntrls assurance initiative within the NHS; Determine individual applicatins under each Scheme fr financial supprt t help t meet the cst f settlements; Manage the handling f claims s as t ensure a fair utcme in the interests f the NHS and patients generally; Assist the Department f Health in determining cash and resurce limits fr ELS; Determine cntributins frm members twards the csts f the cntributry Schemes; Determine effective arrangements fr the management f Schemes and appint and versee scheme managers, if deemed apprpriate, wh will be appinted by cmpetitive tender fr perids f three t five years and wh will be respnsible fr functins t be determined by the Authrity; Establish and maintain systems t ensure the crrect payment t claimants under the Schemes; Prmte the availability f educatin, training and develpment packages available t NHS staff in respect f bth claims handling and risk management cntributing t and designing specific curses as apprpriate; Develp and disseminate gd practice guidance fr claims handling and risk management cnsistent with wider Department f Health and NHS initiatives; Assisting NHS bdies in cmpliance with the Human Rights Act; T undertake any ther functins as may be determined frm time t time by the Secretary f State fr Health. The Authrity as with all ther NHS bdies is subject t the requirement f clinical gvernance and expects members f the Schemes t cmply with thse requirements as apprpriate. Claims Management Plicy v5 24

25 7. Training Training in the investigatin f claims will be prvided t senir management as part f Strategic Risk Management awareness prgrammes as reflected in the Trust Training Needs Analysis. 8. Equality and diversity The Trust is cmmitted t ensuring that, as far as is reasnably practicable, the way we prvide services t the public and the way we treat ur staff reflects their individual needs and des nt discriminate against individuals r grups n the grunds f any prtected characteristic (Equality Act 2010). An equality analysis has been undertaken fr this plicy, in accrdance with the Equality Act (2010). 9. Mnitring cmpliance with the plicy Standard / prcess / issue CLIPA Reprts Legal Services Manager Psitin n nging, new and settled claims 10% f claims audited t demnstrate cmpliance with the plicy including: Actins t be taken including timescales Cmmunicatins with relevant stakehlders where apprpriate Slicitrs risk management reprts Mnitring and audit Methd By Cmmittee Frequency SafeCare Quarterly Cuncil and PQRS Reprt Audit Cmpleted actin plans Legal Services Manager Legal Services Manager Trust Bard PQRS Annually Annually Divisins Safecare As required The department will c-perate with the audit departments bth internal and external t enable them t cnduct audit f the claims management prcesses. 10. Cnsultatin and review The plicy will be reviewed n a tw yearly basis r in the light f changes in guidance r legislatin. 11. Implementatin f the plicy (including raising awareness) All claims and ptential claims against the Trust will be managed in accrdance with this plicy. 12. References Ministry f Justice (1998) Pre actin Prtcls fr the reslutin f Clinical Disputes. Ministry f Justice (2009) Civil Prcedure Rules Claims Management Plicy v5 25

26 NHSLA CNST Membership Rules April 2001 revised March NHSLA RPST Membership rules August Department f Health NHSLA Framewrk Dcument December Assciated dcumentatin This plicy shuld be read in assciatin with the fllwing plicies, prcedures and guidance. RM04 Incident Reprting Plicy & Prcedure including Serius Untward Incidents Guidelines fr Investigatins RM21 Cmplaints Plicy Claims Management Plicy v5 26

27 Appendix 1 External rganisatins t whm incidents may need t be reprted and may need t be invlved in investigatins Audit District Audit Internal Centre fr cmmunicable disease cntrl Natinal Patient Safety Agency Cnfidential Inquiries Crner Department f Health Natinal Clinical Assessment Authrity Envirnment Agency Fd Standards Agency Gateshead Primary Care Trust Suth f Tyne & Wearside Mental Health Trust Nrth East Ambulance NHS Trust Strategic Health Authrity Health & Safety Executive MHRA Mental Health Act Cmmissin Natinal Radilgical Prtectin Bard NHS Estates NHS Litigatin Authrity Plice Prfessinal regulatry bdies (e.g. GMC) Public Health Labratry Service Serius Hazards f Transfusin (SHOT) The Directrate fr Cunter Fraud Services Please nte this list is nt exhaustive and aims t serve as an aide memir Claims Management Plicy v5 27