Nichola Lennon, Head of Legal Services Dawn Sharples, Legal Services and Inquest Liaison Assistant. Pauline Jones, Director of Nursing

Transcription

1 Trust Board Part 1 Agenda Item 14. Date: 27 th May 2015 Title of Report Legal Services Annual Report 2014/2015 Purpose of the report and the key issues for consideration/decision The Board is asked to review the contents and note progress during 2014/2015 Prepared by: Name & Title Presented by: Nichola Lennon, Head of Legal Services Dawn Sharples, Legal Services and Inquest Liaison Assistant Pauline Jones, Director of Nursing Action Required (please X) Approve Adopt Receive for information x Strategic/Corporate Objective(s) supported by this paper Na. Is this on the Trust s risk register? No x Yes If Yes, Score Which Standards apply to this report? CQC NHSLA BAF Objectives 14/15 WWL Wheel 13/14 Yes Yes Yes Have all implications related to this report been considered? Finance Revenue & Capital National Policy/Legislation NHS Contract Human Resources Yes/No/NA Any Action Required Na Na Equality & Diversity Yes Na Patient Experience Na Na Governance & Risk Management Yes Na Terms of Authorisation Yes/ No/NA Consultation/Communication Yes Na Human Rights Na Na Na Na Carbon Na Na Other: Reduction If action required please state: Na Yes Yes Na Any Action Required Na Na Na Na Previous Meetings Please insert the date the paper was presented next to the relevant group ECC Audit Committee Quality & Safety Committee Finance & Investment Committee Management Board IM&T Strategy Committee HR Committee NED Other Na Na Na Na Na Na Na 1

2 LEGAL SERVICES ANNUAL REPORT 2014/2015 2

3 Contents Section number Heading Page No. 1 Executive Summary 4 2 Introduction Clinical Negligence Claims Employers and Public Liability Claims HM Coroner s Inquests Ex-Gratia Payments Healthcare Advisory Work 13 8 Risk Management Issues Improvements for 2014/

4 1. EXECUTIVE SUMMARY The Legal Services Annual Report 2014/2015 for Wrightington, Wigan and Leigh NHS Foundation Trust ( the Trust ) will be submitted to the June 2015, Trust Board. The information contained within this report comprises the period from 1 April 2014 to 31 March 2015 in respect of claims, litigation and HM Coroner s Inquests. The report contains an analysis of the data during the 2014/2015 financial year, and where appropriate, uses comparative data from previous years. The purpose of the Legal Services Annual Report is to feed this data back into the organisation to see what lessons can be learnt, and where appropriate changes can be made. This is to ensure that the Trust develops an ability to learn from claims, litigation and HM Coroners Inquests trends and themes with the aim of reducing both harm to patients and litigation costs. The report will also provide an update on risk management issues, the progress made by the Legal Services Department itself during 2014/2015, along with proposals for any change within the next financial year. 2. INTRODUCTION The Legal Services Department ( the Department ) is responsible for the management of: Legal cases brought against the Trust in respect of clinical negligence claims; Employers and public liability claims; Ex-gratia requests for compensation; and HM Coroner s inquests. Although these are the main areas of work within the Department, this list is by no means exhaustive. The Head of Legal Services is also responsible for providing advice on a wide range of legal issues; including consent to treatment, disclosure, contractual matters and Freedom of Information requests. It is accepted that there will be times when the Department may have to instruct external solicitors to provide specialist advice on various healthcare / contractual issues. The Head of Legal Services is responsible for determining when external solicitors should be instructed to deal with any relevant matters to the organisation; at all times ensuring that legal costs are proportionate to the particular matter at hand. The graph 1 below demonstrates the number of on-going / live cases the Department was dealing with as at 31 March

5 Clinical Negligence Claims Clinical Negligence Requests for Records 43 Employer's Liability 8 Public Liability 26 Ex gratia Claims 46 HM Coroner's Inquests Graph 1 Graph 1 shows a rise in the number of live clinical negligence claims the Department is dealing with, compared to the previous financial year. In 2013/14 there were 104 live clinical claims, whereas in 2014/15 this has risen to 140. In addition, there has been a rise in the number of claimant solicitor s firms making a request for disclosure of patient s medical records. There were 254 requests in 2013/14 which has risen to 338 requests in 2014/15. This has had a huge impact on the resources within the Department, as the Department are responsible for copying / checking all medical records requests. Graph 1 also shows the number of live Employers Liability dealt with by the Department claims has risen. In 2013/14 there were 30 live Employers claims, compared to 43 in 2014/15. The number of live HM Coroner s Inquests remains the same as the last financial year. 3. CLINICAL NEGLIGENCE CLAIMS All clinical negligence claims brought against the Trust are managed in accordance with Trust policy and the terms and requirements of the NHSLA Clinical Negligence Scheme for Trusts (CNST). CNST is a contributory scheme which funds all damages and solicitors costs in cases which have been referred to the NHSLA. The NHSLA requires Trusts to report any potential claims, cases that have been the subject of internal investigation or complaint, those with a media interest and any contentious issues, as well as those cases where a formal Letter of Claim has been received, or court proceedings have been issued. The Department is responsible for handling claims prior to referral and for ensuring appropriate preliminary investigations are carried out. Once a referral to the NHSLA has been made, the Department is responsible for ensuring the case is appropriately managed and to assist in obtaining information relevant to the claim (such as clinician s statements, protocols, medical records etc). In the latest NHSLA Annual Report 2013/14 it was reported that they had received the highest number of new clinical negligence claims (18% increase), and for the first time the NHSLA received more than 1,000 claims per month in 6 months of the year. (We are currently waiting for the NHSLA Annual Report 2014/15 to be published) 5

6 This increasing trend is reflected in the number of clinical claims the Trust has received over the last 3 years as shown below in Table 1 below. Reporting Year 2012/ / /2015 New Clinical Negligence Claims Received Table 1. Graph 2 below shows a comparison of thee numbers of claims brought against each Division between 2012/2013 and 2014/2015. The graph shows a rise in the number of claims within Medicine and Surgery, but actually a decrease in the number within Specialist Services. 3.1 New Clinical Claims / / /2015 Graph 2. N.B. Following the service redesign, Clinical Support Services and Musculoskeletal Divisions were reconfigured into the Specialist Services Division. 3.2 Summary of Clinical Negligence Cases 2014/2015 The information in Table 2 below showss how many new clinical negligence cases (per quarter) where brought against the Trust during the period of 1 April 2014 and 31 March 2015, and what payments were made to both the claimant and their solicitors (where( available) ). Report Quarter New Q1 April to 17 June 2014 Q2 July to 21 Closed Cases Resultingg in Paymentt to the Claimant 9 5 Total Value Settled Claims 1,713, ,655,000 Total Value Highest Payment Claimant s Made Solicitors Costs 276,0000 1,527, ,500 1,500,000 6

7 September 2014 Q3 October to December 2014 Q4 January to March 2015 Table 2. *3 not yet paid , ,115 *1 not yet paid , ,000 *6 not yet paid 75,000 50,000 The claims above, which resulted in damages being made to the claimant, fell within the following Divisions: (It is noted in bold what claim the highest payment per quarter related to). Surgical Division: Failure to comply with the Trust s pressure sore prevention policy. Delay at birth following suspect CTG traces - claimant now suffers from cerebral palsy (this resulted in a payment of 1,527,803.90; the highest for Q1). Attended for abortion but following discharge home, 5 days later foetus was passed. Delay in diagnosis of stapyhlococcal illness, claimant developed multiple organ failure and died. Hypoxic incident during labour (this resulted in a payment of 1,500,000; the highest for Q2). Failure to report and follow up and repeat liver function tests which would have led to an earlier diagnosis and treatment of HSV (Herpes Simplex Virus). Baby had stapyhlococcal illness and developed multiple organ failure and died. Failure to rotate claimant s position during labour claimant developed pressure ulcers (grade 2) following an epidural. Following repair of 2nd degree tear after birth, claimant has suffered subsequent complications requiring reconstructive surgery. Claimant suffered blistered area to sacrum following normal delivery with epidural analgesia. Of the above claims; 3 related to pressure sore management, and 4 related to treatment of the claimant and / or baby following delivery. Medicine Division: Delay in diagnosing a malignant lymphoma, claimant died. Failure to diagnose fracture to hip whilst in A&E. Inadequate supervision/assessment to prevent falls. Delay in diagnosis of stroke; claimant now suffers from "locked-in-syndrome. Thrombolysation was mistakenly administered causing haemorrhagic stroke. Following diagnosis of pneumoccocal septicaemia, the treatment received did not meet a reasonable standard and caused unnecessary pain and suffering. Infusion given which was not monitored and caused a severe burn mark to hand. Administration of wrong medication and failure to monitor. 7

8 Patient inappropriately transferred to Rehab Ward without authorisation of Doctor, patient deteriorated and later died following transfer back. Failure to diagnose testicular torsion requiring surgery to remove testicle. Failure to diagnose Cauda Equina Syndrome (CES) in a timely manner (this resulted in a payment of 50,000; the highest for Q4). Of the above claims, it is worth noting that 3 related to medication errors. Specialist Services Division: The scaphoid bone was wrongly removed from the claimant's right wrist (this was deemed a Never Event ) (it resulted in a payment of 75,000; the highest for Q3) Initial ankle surgery carried out negligently. Claimant suffered urinary retention due to not being catheterised during admission following a hip replacement. Failure to diagnose loose bones in knee requiring surgery at a later date. When any claim is settled a briefing report is prepared by the Head of Legal Services or the Legal Services and Inquest Liaison Assistant. The report provides a synopsis of the claim, the reasons for settlement, and where lessons can be learnt. These reports are then shared with the appropriate Divisions and also discussed at the daily Teleconference by the Patient Safety team. 4. EMPLOYERS and PUBLIC LIABILITY CLAIMS The Trust is a member of the NHSLA Liabilities to Third Parties Scheme (LTPS); a contributory scheme which provides financial assistance to Trust s in meeting damages and solicitors costs in respect of employers and public liability claims. Unlike CNST, all cases are referred to the NHSLA at the outset of the claim and the Trust itself is responsible for meeting the first 10,000 of each claim (including defence costs in cases successfully defended). In August 2013 the NHSLA created an online portal for Employers Liability and Public Liability Claims. For incidents occurring on or after 31 July 2013, and valued between 1,000 and 25,000, it is compulsory for claims to be reported via the portal. [The risks around the NHSLA s online portal system will be discussed further in Section 8 below. However it is to be noted that during Quarter 4 of 2014/15, two Employers Liability claims were settled by the NHSLA without authorisation from the Department which has resulted in the Trust paying the damages and solicitors costs in both these cases. The Head of Governance and Assurance is currently in communication with the NHSLA regarding this issue]. 4.1 Employers Liability Claims Table 3 provides details of new Employers Liability Cases notified to the Trust since 2012/2013. Over the last 3 years there has been an increase in the number of Employers and Public Liability claims brought against the Trust. Reporting Year Number of Cases 2012/ / /

9 Table 3. Table 4 below shows the number of Employers Liability cases (per quarter) brought against the Trust during the period 1 April 2014 to 31 March 2015, and the total payment to the claimants and their solicitors (where available). Report Quarter Q1 April to June 2014 Q2 July to September 2014 Q3 October to December 2014 Q4 January to March 2015 New Closed Cases Resulting in Payment to the Claimant Total Value Settled Claims Damages Total Value Claimant s Solicitors Costs ,500 15,850 13, ,000 16,100 20, ,000 44,452 44, ,000 1,032 *1 not yet paid Total Value of Payment made by The Trust 6,032 Table 4 The majority of cases where payment was made related to the following: Slips/Trips/Falls (58.3%) Sharps injuries(33.3%) Injured by object/equipment (8.3%) Out of the Slips/Trips/Falls claims, the majority were settled due to the Trust not having an appropriate system of cleaning in place. This has been fed back to the appropriate Division and the Department is assured that changes have been made. The Department also saw a rise in the number of manual handling claims being brought by staff members (such as when moving patients, trolleys etc). The Trust has now appointed a designated Moving and Handling Matron and the Department is working closely with them to defend claims and learn lessons where appropriate. When a claim is settled a briefing report is prepared by the Head of Legal Services or the Legal Services and Inquest Liaison Assistant. The report sets out the reasons for settlement, and where lessons can be learnt. These reports are then shared with the appropriate Divisions and also discussed at the daily Teleconference by the Patient Safety team. 4.2 Public Liability Claims Table 5 indicates the number of Public Liability claims notified to the Trust since 2012/2013. Table 5 shows a steady increase over the last 3 years. 9

10 Reporting Year Number of Cases Notified 2012/ / / Table 5 Table 6 details new and settled Public Liability claims from 1 April 2014 to 31 March 2015 including the value of the claim and the Claimant s Solicitors costs. Report Quarter New Settled Total Value Settled Claims Q1 April to June Q2 July to September Q3 October to December 2014 Q4 January to March ,500 22, Table 6 The two settled claims relate to the following incidents: Total Value Claimant s Solicitors Costs Slip on Ward Slip/Fall on Car Park The Department continues to work closely with the Estates and Facilities Department, and also the Health and Safety Manager, to ensure the Trust has appropriate policies in place to robustly defend Public Liability claims where possible. 5. HM CORONER S INQUESTS HM Coroner will notify the Department of any upcoming inquests where the death of the patient occurred in the Trust, or where the patient had been treated by the Trust prior to death. Upon request by HM Coroner, the Department is responsible for obtaining statements from relevant members of staff and for these to be submitted to the Coroner s office. HM Coroner will then decide if that clinician is required to be present at the inquest itself, or if their statement can be read as documentary evidence under Rule 37 of the Coroner s Rules. The Head of Legal Services is responsible for assisting members of staff in the preparation of those statements and attendance at inquest if necessary. However where it is felt that there may be potential issues which could affect the Trust, or attract adverse publicity, the Head of Legal Services is obliged to notify the NHSLA of the upcoming inquest and can request NHSLA funding. If approved, the NHSLA will then instruct external solicitors to represent the Trust at the hearing. The Head of Legal Services may also seek specialist advice from external solicitors on other issues relating to upcoming inquests; at all times ensuring the legal costs are propionate to the advice sought. Graph 3 below provides a breakdown of the number of inquests received by the Trust during the period of 1 April 2009 to 31 March

11 NEW INQUESTS RECEIVED / / / / / /2015 Graph 3 Graph 3 indicates that there has been a slight drop in the number of inquests the Department has been notified of. However despite this decline, there has been an increase in attendance of Trust staff at hearings. In 2013 there were 138 witnesses called, whereas in 2014 this number rose to 230. Table 5 demonstrates the number of inquests that were held each quarter during the 2014/2015 financial year. Report Quarter New Inquests Notified Inquests Held Inquests Attended by Head of Legal Services / External Solicitors Q1 April to June 2014 Q2 July to September 2014 Q3 October to December 2014 Q4 January to March Table 5. There are a number of common themes which are regularly addressed by HM Coroner. These include the following: Nursing intervention not recorded in the case notes; 11

12 Failure to carry out observations / neuro-observations as required; Standard of medical record keeping; Falls risk assessments not carried out appropriately; Poor communication with relatives; Nutrition and feeding These themes, and any other concerns regarding inquests, are discussed at the weekly Executive Scrutiny Committee. If any actions are required the Committee requests assurance from the relevant Divisions and feedback is provided at future meetings. The Trust did not receive any PFD (Prevention of Future Death) reports in 2014/2015. This is primarily due to Root Cause Analysis (RCA) reports being prepared in readiness for HM Coroner s inquests to show that failings have been identified, and lessons have been learnt. All contentious inquests are discussed by the Head of Legal Services at the weekly Executive Scrutiny Committee. It is decided by the Committee if an RCA should be commissioned in readiness for the inquest, and the author of the RCA. 6. EX-GRATIA PAYMENTS In 2014/2015 the Department received 32 ex-gratia payment requests. A breakdown of the reason for the request for payment is provided in Graph 4. Damage to car/property Damage to teeth during anaesthetic Loss of money Loss/damage to hearing aid Reimbursement incurred because of Loss/Damage of glasses Loss/Damage of dentures Reimbursment of private fees Loss/Damage of Clothes and other items Refund of fees/expenses Loss of earnings/travel expenses Fall down collapsed grid Graph 4 Table 6 provides a breakdown of the requests made and settled since Year Number of Number of Percentage Total Paid ( ) Requests Requests Paid 2011/ % 3, / % 4, / % 10, / % 2, Table 6. 12

13 Since 2011 the Department has seen a steady increase in the number of ex-gratia requests being made, and the amount of payments being paid. However in 2014/2015 there has been a reduction in the number of ex-gratia requests, and a huge decrease in the amount payable to claimant. This has due to efforts being made by the Department to robustly defend claims where compensation is not deemed appropriate, and work has been undertaken with the wards to help reduce the number of claims made. In particular, the use of patient disclaimer forms has improved across all wards. 7. HEALTHCARE ADVISORY WORK The Head of Legal Services also provides advice on a wide range of legal issues and topics, including consent to treatment, disclosure of records, and Freedom of Information Requests. Lectures have also been given recently by the Department, as well as the Trust s external solicitors on Duty of Candour, and the importance of informed consent (in light of the recent Supreme Court ruling). Healthcare advisory work will be kept in-house and dealt with by the Head of Legal Services. If more specialist knowledge is required however, it will be necessary at times to refer work to the Trust s external solicitors. At all times the Head of Legal Services will ensure the fees incurred are proportionate to the work undertaken. 8. RISK MANAGEMENT ISSUES The three key risk management issues have been identified as follows: 8.1: Increase in Claims / Litigation The past year has been one of continuing change for the NHS, and as indicated above, the NHSLA have seen the highest number of both clinical and non-clinical claims to date. The question therefore is what has triggered this increase in numbers. The Jackson reforms culminated in the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) which came into effect from 1 August 2013 (and only now are we really seeing the after effects). This legislation reformed the funding arrangements for civil litigation which meant an end to no win; no fee for claimant solicitors. However it meant new entrants to the clinical negligence arena as this is now one of the last remaining areas where claimant solicitors can charge an hourly rate. The NHS is therefore now dealing with more firms than ever who have no specialty in clinical negligence, resulting in a higher drain on resources and disproportionate costs being claimed. Another factor for the increase in claims is due to the Government, as of 9 March 2015, introducing changes to the civil court fees. Claims between 10,000 and 200,000 will attract a court fee of 5% of the amount claimed, and claims over 200,000 will attract a fixed court fee of 10,000. This is a huge increase from what claimant firms are used to paying. Therefore claimant solicitors rushed to issue their claim at court before 9 March 2015 and over the next 6 months the Department anticipates receiving a sudden increase in claims. As stated above under Section 4, the NHSLA s new online portal system has also resulted in an increase in the number of Employers and Public Liability claims against the Trust. It is felt that due to the increased time pressures, and pressures to keep costs to a minimum, it has resulted in rushed liability decisions and poor investigations (as shown by the NHSLA settling claims without Trust authorisation). 13

14 In light of the increasing clinical and non-clinical claims, the NHSLA have increased their contributions for the next financial year. There is therefore a huge incentive for NHS Trusts to improve patient safety thereby reducing the number of claims against the organisation (and hence the contributions). The Department will continue to work closely with the Patient Safety team, and all Divisions, to ensure that lessons can be learnt wherever possible. 8.2 Increase in HM Coroner s Inquests The Coroners (Inquests) Rules 2013 came into force on 25 July The intention behind the reforms was to make the Coronial system more professionalised with better training for Coroners and with the aim of a more consistent approach. However there is still a significant amount of local practice, and different approaches taken by Coroners within the same jurisdiction. In addition, HM Coroner is now under a duty to report all actions they feel might prevent future deaths. This replaces the old power whereby Coroner s may make such a report. It is no longer a matter of discretion. The Coronial reforms encourage a greater number of inquests to be held, and therefore an increased number of witnesses to attend. As indicated in Section 5 above, there has been an increase in the number of Trust staff attending HM Coroner s inquests (with 108 staff in 2012, 138 staff in 2013 and 230 staff in 2014). Staff attendance at inquests has a huge financial impact on the Trust as it means clinicians are unable to attend clinics / theatre lists, and more importantly it is having an impact on patient care. The Department requests that this risk is noted. 8.3 Duty of Candour The Duty of Candour came into force on 27 November 2014 and is applicable to all NHS bodies. It requires a duty to act in an open and transparent way and make patients aware when a Notifiable Safety Incident has occurred (i.e. an incident that may have resulted in death, severe or moderate harm, or prolonged psychological harm). Non-compliance is a criminal offence and also punishable by a fine. The potential risks of Duty of Candour for the Trust are that in making apologies, and providing explanations, admissions of fact will be made which may influence the question of liability in any legal claim. Patients, and their families, are more likely to complain and / or seek legal advice if they are aware harm has been caused. Under the Duty of Candour rules the Trust is now obliged to share any investigations with patients / families, as well as HM Coroners. 9. IMPROVEMENTS FOR 2014/15 The following actions will be implemented and maintained in 2014/15 in order to progress and sustain this development: The Department appointed a new Head of Legal Services who has been in post since 1 May The Head of Legal Services is responsible for the day-to-day management of the Department, and in the management of claims and HM Coroner s Inquests as outlined above. Within the Legal Services Annual Report 2013/14 it was noted that the Department had significant capacity pressures. A new Legal Services Officer has since been appointed, and they have been in post since October The Department is now 14

15 working more effectively and there are no longer delays in the disclosure of medical records. The Orthopaedic team had a successful NHSLA bid as part of the Trust s Sign up to Safety submission. The bid secured The Executive Scrutiny Committee will continue to be attended by the Head of Legal Services (or in her absence the Legal Services and Inquest Liaison Assistant). Key HM Coroner s Inquests, litigation and claims will be discussed. Actions are made at each meeting (as and when required) and implemented by the Department. Briefing reports on settled claims, and Solicitors reports following high profile inquests, are to continue to be shared with the respective Divisions. A quarterly Feedback newsletter incorporating any emerging trends identified Lessons Learned from Claims, Litigation and Inquests is in currently in progress, which will be distributed to divisional and directorate leads for presentation across their respective divisions / directorates. All Department policies and SOPs in respect of claims and HM Coroner s Inquests have now been finalised and approved. Work is being undertaken with the newly appointment Moving and Handling Matron to ensure non-clinical incidents are investigated and appropriate actions taken. The Head of Legal Services is currently presenting a series of lectures on the key risks / challenges facing the Trust which includes lectures to the Trust Board, all Divisions and at the Patient Safety Conference. Plans are now in place for the relocation of the Department to an office on the ground floor to mitigate the Health and Safety risks highlighted regarding moving and handling. 15