Validation Date: 05/11/2013. Ratified Date: 23/01/ /06/2014. Review dates may alter if any significant changes are made

Transcription

1 Document Type: POLICY Title: Handling Clinical Negligence and Personal Scope: Trust Wide Author/Originator and title: Solicitor / Claims Manager Replaces: Version 7: Handling Clinical Negligence and Personal (CORP/POL/007) Name Of: Divisional/Directorate/Working Group: Clinical Governance Management Team Meeting Validated by: Interim Deputy Director of Corporate Affairs and Governance Ratified by: Risk Committee Trust Management Team, Chairman s Action Description of amendments: Amendments throughout Date of Meeting: Validation Date: 05/11/2013 Ratified Date: 23/01/ /06/2014 Review dates may alter if any significant changes are made Unique Identifier: CORP/POL/007 Version Number: 8 Status: Draft Classification: Organisational Responsibility: Clinical Governance Directorate Risk Assessment: Not Applicable Financial Implications Not Applicable Which Principles of the NHS Constitution Apply? 3 and 5 Issue Date: 18/06/2014 Review Date: 01/09/2016 Does this document meet the requirements of the Equality Act 2010 in relation to Race, Religion and Belief, Age, Disability, Gender, Sexual Orientation, Gender Identity, Pregnancy & Maternity, Marriage and Civil Partnership, Carers, Human Rights and Social Economic Deprivation discrimination? Initial Assessment

2 CONTENTS 1 PURPOSE NHS Constitution SCOPE POLICY Principles Duties and Responsibilities Support for Staff Involved in Claims and Inquests (Internally and Externally) Immediate Support Offered to Staff (Internally and if necessary externally) Ongoing Support Offered To Staff (Internally and if necessary externally) Advice Available To Staff In The Event Of Being Called As A Witness (Internally and if necessary externally) Action for Managers Or Individuals To Take If Staff Experience Difficulties Associated With The Event Co-ordinated Approach to Managing Complaints, Litigation, Incidents and Patient Relations Enquiries Co-ordinated approach to the Aggregation of Incidents, Complaints and Claims Frequency With Which An Aggregated Analysis of Incidents, Complaints and Claims Is To Be Completed Minimum Content Required Within The Analysis Report, Including Qualitative and Quantitative Analysis Process for Communicating Aggregated Information To Relevant Individuals Or Groups Process for Managing Claims NHS Litigation Authority Schemes Relevant to the Organisation Action to be Taken to Investigate Clinical Negligence Claims Including Timescales Action to be Taken to Investigate Personal Including Timescales Communication with Relevant Stakeholders Open and Effective Communication Process for Acknowledging, Apologising and Explaining When Things Go Wrong Requirement for Truthfulness, Timeliness and Clarity of Communication Provision of Additional Support as Required Requirements for Documenting All Communications How the Organisation Trains Staff in Line with the Training Needs Analysis Different Levels of Investigation Appropriate to the Severity of the Event(s) Process for Encouraging Learning and Promoting Improvements in Practice Based on Analysis of Claims Process by which the organisation ensures both local and organisational learning from claims / inquests Process for Following up Relevant Action Plans (for Clinical Negligence Claims and Personal ) Solicitor s Risk Managment Reports on Claims Opportunities for Sharing Lessons learned from Claims Across the Local Health Economy Page 2 of 38

3 3.8.5 Involving and Communicating with Internal and External Stakeholders to Share Safety Lessons Process by which organisation ensures that lessons learnt from analysis result in a change in organisational culture and practice Process for Implementing Risk Reduction Measures Process for Monitoring Compliance ATTACHMENTS ELECTRONIC AND MANUAL RECORDING OF INFORMATION LOCATIONS THIS DOCUMENT ISSUED TO OTHER RELEVANT/ASSOCIATED DOCUMENTS SUPPORTING REFERENCES/EVIDENCE BASED DOCUMENTS CONSULTATION WITH STAFF AND PATIENTS DEFINITIONS/GLOSSARY OF TERMS AUTHOR/DIVISIONAL/DIRECTORATE MANAGER APPROVAL Appendix 1 - Process for monitoring compliance - NHSLA Supporting Staff Involved in an Incident, Complaint or Claim Appendix 2 - Process for monitoring compliance - NHSLA Claims Management Appendix 3 - Process For Monitoring Compliance - NHSLA Investigations Appendix 4: Claims Audit Proforma Appendix 5: Equality Impact Assessment Form Page 3 of 38

4 1 PURPOSE The Board adopts the following policy to ensure the effective handling and investigation of clinical negligence and personal injury claims being pursued by litigants against the Trust; to set out the responsibilities of staff within the Trust in respect of potential or actual claims; to set out the support available to staff involved in claims/inquests; and to ensure that lessons learned from claims are shared resulting in the implementation of risk reduction measures to improve safety for patients and staff. In accordance with Department of Health Circular HC(89)34, the Trust accepts vicarious responsibility for the acts or omissions of its employees, servants or agents in respect of their NHS employment. The Trust, in conjunction with the NHS Litigation Authority (NHSLA), must take full responsibility for managing and settling NHS clinical negligence claims and must not seek to recover any proportion of these costs from health care professionals or others covered by NHS indemnity or from any private indemnity, which these individuals may have. 1.1 NHS Constitution The Trust has a legal duty to have regard to the NHS Constitution in exercising its NHS functions. The rights in the Constitution, which are existing rights, are legally binding. The introduction of the Constitution may give rise to an increase in litigation against the Trust, however, failure to have regard to the pledges, principles and values contained in the Constitution is unlikely to be sufficient in itself for a legal action to be brought against the Trust. 2 SCOPE This policy applies to all staff employed by the Blackpool Teaching Hospitals NHS Foundation Trust. 3 POLICY 3.1 Principles A claim is defined as an allegation of clinical negligence and/or demand for compensation made following an adverse clinical incident or adverse incident resulting in personal injury or any clinical incident which carries a significant risk of litigation for the Trust. The Trust owes a duty of care to its patients and staff. If that duty of care is breached, and the claimant has suffered injury as a result of the breach of duty, then they are entitled to make a claim for compensation. The Trust must manage and investigate claims in accordance with, and in compliance with the timescales stipulated within, the Civil Procedure Rules 1999 Pre-Action Protocols for the Resolution of Clinical Disputes/Personal /Disease and Illness Claims, and the NHSLA Reporting Guidelines for CNST and LTPS Claims. All Trust staff are expected to co-operate fully in the investigation of claims to enable:- early settlement of justified claims in a timely manner; Page 4 of 38

5 apologies to be given when admissions of breach of duty and causation are made; robust defence of unjustified claims; identification of lessons learned from claims resulting in the implementation of risk reduction measures through changes in organisational culture and practice. 3.2 Duties and Responsibilities The Board has overall responsibility for ensuring that high quality and safe services are in place for patients, visitors and staff through the implementation of internal controls to manage risk and through the sharing of lessons learned to improve safety within the Trust. The Board receive minutes from the Risk Committee The Risk Committee is accountable to the Board, and has responsibility for ensuring that integrated risk management is embedded throughout the Trust. The Committee receives minutes from the Quality Committee and the Health and Safety and Environmental Governance Committee. The Commitee is responsible for reviewing and ratifying the Policy for Handling Clinical Negligence and Personal every three years The Quality Committee is accountable to the Trust Board, and has responsibility for ensuring that appropriate structures, processes and controls are in place to assure quality in clinical care and to share lessons learned. The Committee receives minutes from the Learning from Incidents and Risks Committee The Learning from Incidents and Risks Committee is accountable to the Quality Committee, and has responsibility for improving safety across the Trust by managing clinical risk in a proactive integrated manner through action planning and lessons learned. The Committee is responsible for implementing clinical risk reduction measures and facilitating local and organisational sharing of safety lessons learned from complaints, clinical negligence claims, personal injury claims, clinical incidents and Patient Relation enquiries, resulting in change in organisational culture and practice. The Committee disseminates organisational lessons learned throughout the Trust via a monthly Trust wide news sheet and local lessons learned through the Divisional Risk Leads / Quality Managers. The Committee is responsible for monitoring the clinical negligence claims management process and outcomes, via receipt of quarterly reports submitted by the Solicitor/Claims Manager and ensuring that each claim is reviewed and action is taken with a view to learning lessons. The Commitee also receives and approves quarterly and annual Complaints, Litigation, Incidents and Patient Relations (CLIP) Reports which demonstrates the Trust s aggregated approach to claims, incidents and complaints The Medical Director is the Executive Director with delegated responsibility for the handling of clinical negligence and personal injury claims on behalf of the Trust, who must inform the Board of major developments The Risk Management Department will ensure that untoward incident report forms and follow up information that highlights the potential for a claim is forwarded to Page 5 of 38

6 the Solicitor/Claims Manager for filing pending receipt of any future claim All employees of the Trust will report incidents that could potentially result in a claim and be open and co-operative during the investigation process The Complaints Facilitator will be responsible for informing the Solicitor/Claims Manager of any complaints that could result in a claim, who will then review the correspondence and decide whether the matter needs to be reported to the NHSLA. When any admissions are to be made following the conclusion of a complaint investigation, which may result in compensation, the Solicitor/Claims Manager must be advised who will notify the NHSLA and obtain their approval to the admissions being made The Solicitor/Claims Manager, with support from the Claims Secretary is responsible for : Managing all clinical negligence and personal injury claims in accordance with Trust policy and ensuring that confidentiality of claims files is maintained at all times Ensuring compliance with the claims handling and reporting requirements, including timescales, contained within the Civil Procedure Rules 1999 and the NHS Litigation Authority s Reporting Guidelines for the Clinical Negligence Scheme for Trusts (CNST), Existing Liabilities Scheme (ELS) and Liabilities To Third Parties Scheme (LTPS) Ascertaining upon receipt of a potential claim relating to an accident/injury sustained prior to admission to hospital, whether the claimant has received compensation from any other source (e.g. Criminal Injuries Compensation Authority) to ensure that double recovery does not take place Ensuring communication with relevant stakeholders depending upon the nature and relevance of the allegations received Engaging in open, honest, clear and timely communication with staff and patients/carers/representatives during the investigation of claims/inquests and ensuring the documentation of all communication within claims/inquest files Ensuring that when admissions of breach of duty and causation are made, the claimant or their representative receives a letter of apology signed by the Chief Executive where appropriate Ensuring that immediate and ongoing support is offered to staff, internally and externally, involved in claims and inquests as it is acknowledged that staff involved in claims and inquests can find the experience stressful Ensuring that advice and support is available and/or offered to staff, internally and externally, when being called as a witness to give evidence at a trial or inquest and Page 6 of 38

7 that support is available and action is taken if staff experience difficulties associated with the event Providing Litigants in Person with verbal and/or written information on how to pursue a claim for compensation and provide appropriate assistance and support Ensuring the provision of staff training on claims as identified in the Trust s Training Needs Analysis via corporate induction and mandatory training Identifying practices/procedures/policies which require remedial action to reduce the risk of a recurrence, either within a specific specialty/department, or on a Trust wide basis. A quarterly risk report will be prepared where a risk has been identified during the investigation of a Claim/Inquest. This will be submitted to the Learning from Incidents and Risks Committee for action by the appropriate Divisional Risk Lead / Quality Manager. Ensuring follow up and monitoring of the action plan with evidence of progress and changes in practice having been implemented Ensuring that the established close working relationship and effective communication with the Risk, Complaints and Patient Relations Departments are maintained to facilitate sharing of information as claims can often arise from incidents which may previously have been reported under the untoward incident reporting procedure or have been the subject of a complaint or Patient Relations enquiry Ensuring that upon receiving notification of a potential claim, the Ulysses database is interrogated to ascertain whether the claim had previously been the subject of a general complaint, Patient Relations enquiry or had resulted in the completion of an untoward incident report form Ensuring a co-ordinated approach to the aggregation of incidents, complaints and claims via:- (a) the submission of quarterly reports containing qualitative and quantitative analysis to the Learning from Incidents and Risks Committee relating to clinical negligence claims, personal injury claims and inquests; and (b) submission to the Learning from Incidents and Risks Committee of quarterly and annual reports on Complaints, Litigation, Incidents and Patient Relations (CLIP) Report Instructing Solicitors to act on behalf of the Trust at the appropriate time in respect of claims and inquests. As of April 2012 the Trust has joined the North West Collaborative Hub for the provision of legal services and there are approved panel firms of Solicitors with fixed fees agreed for healthcare and mental health law Ensuring that the Trust s Solicitors carry a sufficient level of professional indemnity cover Maintaining a database of all claims using the Ulysses system, including the category of claim, stage of claim, timescales, financial data and risk issues raised Notifying the Medical Director of any high profile claims immediately upon receipt. Page 7 of 38

8 Notifying the Clinical Governance Management Team meeting held every Friday of any high profile claims/inquests, risks and trends identified Notifying the Chief Executive, Medical Director, Director of Nursing, Assistant Director of Nursing (Patient Safety), Press and Communications Manager and Associate Director(s) of Operations when there is the possibility of media attention in respect of claims/inquests Providing the Medical Director and Director of Finance with an aggregate list of clinical negligence and personal injury claims at the end of each calendar month Referring to the NHSLA via their encrypted claims reporting system claims which involve some unusual or new feature, which, if not correctly handled, may set a precedent for NHS litigation, or claims which appear to represent test cases for a potential class action, or cases which although not formally part of a class action appear to be very similar in kind to concurrent claims against other Trusts To consider requests for extension to primary limitation, and if an extension is thought to be reasonable after consideration of All the relevant evidence, to inform the claimant s Solicitor/Litigant in Person by letter of period of extension agreed. To involve the NHSLA in this process if the claim is reported to them Liaising with Panel firms directly instructed by the NHSLA Representing the Trust at Conference with Counsel and Trial in the Civil Courts and ensuring that the Trust s position and views are clearly expressed Keeping the Consultant(s), other clinicians and ADOPs advised of the progress of the claim and must ensure that the Consultant(s) are involved in the decision on whether or not a claim should be settled or defended to Trial. This involvement includes the Consultant(s) receiving and commenting upon Letters Before Action, Letters of Claim, Letters of Response, Pleadings, Defences, independent medical expert reports, witness statements and attendance at Conference with Counsel Checking the content and accuracy and signing of Defences, Consent Orders, Counter Schedule of Loss, Disclosure Statements List of Documents for Standard Disclosure which contain a statement of Truth as an Authorised Signatory as the Trust, not the NHSLA, is the Defendant named in legal proceedings Liaising with the NHSLA/Panel Solicitors regarding the use of Alternative Dispute Resolution, for example mediation or arbitration Agreeing the content of press releases with the NHSLA prior to attendance at Trial/Infant Settlement Hearing etc. and ensuring that the Chief Executive, Medical Director, Assistant Director of Nursing (Patient Safety), Press and Communications Manager, and the relevant ADOP and Consultant(s) are aware of potential media attention Obtaining relevant information to enable claims to be reported to the Page 8 of 38

9 Compensation Recovery Unit and to obtain Certificates of Recoverable Benefits Acting as the Trust s point of contact with HM Coroners and providing disclosure of factual witness statements and any other relevant documentation, e.g. medical records, SUI reports. Represent the Trust at pre-inquest review hearings, mention appointment and Inquests when staff have been called to give oral evidence and instruct Panel Solicitors/Counsel as appropriate to represent the Trust if relatives of the deceased have legal representation. Prior to Inquest, inform Chief Executive, Medical Director, Assistant Director of Nursing (Patient Safety), Associate Director(s) of Operations, Press and Communications Manager of date, time, venue and circumstances surrounding death of patient. Following Inquest provide details of verdict and Press Release Advise Executive Directors/Assistant Directors of Operations regarding ex-gratia payments. 3.3 Support for Staff Involved in Claims and Inquests (Internally and Externally) It is acknowledged that staff, irrespective of grade or experience, involved in claims and inquests, both internally and externally, can find the situation extremely stressful and therefore it is imperative that appropriate and confidential support is available and offered to staff to ensure their wellbeing is maintained and to minimise the risk of suffering from adverse effects following a claim/inquest. It is important that staff are treated in a sensitive manner and have access to the Solicitor/ Claims Manager (who can be contacted on ext 3150) to explain to staff their involvement in the process for investigating claims/inquests and answer any questions or concerns they may have and provide guidance and support both throughout and following the conclusion of the claims/inquest process. Support for staff can also be accessed via their Line Manager, HR Department or Professional Body. Counselling and support can be accessed via the Trust s Occupational Health Department Immediate Support Offered to Staff (Internally and if necessary externally) The Solicitor/Claims Manager will offer immediate support to staff involved in claims and inquests. The offer of immediate support to staff will be documented in the claims/inquest file by the Solicitor/Claims Manager Ongoing Support Offered To Staff (Internally and if necessary externally) As the claims process can often be lengthy, sometimes taking years to conclude, ongoing support will be offered by the Solicitor/Claims Manager both throughout, and following the conclusion of, the claim/inquest. The offer of ongoing support to staff throughout the claims/inquest process will be documented in the claims/inquest file by the Solicitor/ Claims Manager Advice Available To Staff In The Event Of Being Called As A Witness (Internally and if necessary externally) Prior to a witness meeting with the Trust s Solicitor to prepare a formal witness statement for disclosure in support of the defence of a claim, attending a Conference with Counsel or giving evidence at a Trial or Inquest, the Solicitor/Claims Manager will ensure that the Page 9 of 38

10 witness is fully prepared and understands the claims/inquest process. The Solicitor/ Claims Manager will provide the witness with all relevant documentation and will advise and explain to them the purpose and format of the meeting with the Trust Solicitor/conference/trial/inquest and answer any queries or concerns they may have. The Solicitor/Claims Manager will accompany and support witnesses during pre trial/inquest meetings and during meetings with the Trust s Solicitor/Conference with Counsel and also during a trial/inquest. The Solicitor/Claims Manager will offer support to witnesses following the conclusion of the trial/inquest and arrange a debrief if required. The offer of support to staff in the event of being called as a witness will be documented in the claims/inquest file by the Solicitor/Claims Manager. The Trust s Solicitors can also be approached by the Solicitor/Claims Manager to provide support to witnesses if required at any time during the claims/inquest process Action for Managers Or Individuals To Take If Staff Experience Difficulties Associated With The Event If the Solicitor/Claims Manager identifies that staff are experiencing difficulties associated with a claim/inquest, the Solicitor/Claims Manager will discuss with staff the options available, either from within the Trust or from external sources, to provide them with appropriate support/counselling. If staff want to receive support/counselling, no action will be taken (i.e. notification to Manager or referral) without the consent of the member of staff being obtained. The offer of support to staff experiencing difficulties associated with the event will be documented in the claims/inquest file by the Solicitor/Claims Manager. For the further process to be followed by Managers in order to review the support arrangements if staff are experiencing difficulties, please refer to Corp/Proc/550, Supporting Staff Involved in Traumatic/Stressful Incidents, Complaints or Claims (see section 7). 3.4 Co-ordinated Approach to Managing Complaints, Litigation, Incidents and Patient Relations Enquiries In order to achieve and maintain a co-ordinated approach to risk management and patient safety, a close working relationship must exist between the Solicitor/Claims Manager and the Associate Directors of Nursing, Patient Experience Manager [Complaints and Patient Relations Department)], the Clinical Governance Risk and Patient Safety Manager, Quality Managers, the Physical Risk Manager and the Local Security Management Specialist. This will facilitate a co-ordinated approach to managing and investigating clinical and nonclinical incidents, complaints, claims and Patient Relations enquiries (see Corp/Pol/155 The Systematic Approach to Managing Incidents, Complaints and Claims). All incidents and complaints that may lead to a claim must be discussed with the Solicitor/ Claims Manager who must decide whether the matter needs to be reported to the NHSLA as a risk of litigation. When any admissions are to be made by the Trust following the conclusion of the investigation of a complaint or serious incident, which may result in compensation being paid, the Solicitor/Claims Manager must notify the NHSLA and obtain their approval to the admissions being made. Upon receipt of all new claims, the database will be interrogated to ascertain whether the Page 10 of 38

11 claim had previously been the subject of a general complaint, Patient Relations enquiry, inquest, enquiry from a Litigant in Person or had resulted in the completion of an incident form and/or serious untoward incident investigation. The Solicitor/Claims Manager must submit a quarterly report to the Learning from Incidents and Risks Committee relating to clinical negligence claims, personal injury claims and inquests attended. This quarterly risk report will highlight any risk issues that have arisen during the course of an investigation and which require action. Actions are to be taken forward by the relevant Quality Manager for the Division. The Minutes of the Committee meetings will record the submission and discussion of these reports. To maintain the confidentiality of patients and staff involved in litigation against the Trust, the reports must be anonymised and will include :- Details of the number of claims received during that quarter by specialty, highlighting those that have previously been the subject of a complaint, incident or PALS enquiry, the allegations of negligence and any risk management issues identified. Details of the number of claims closed during that quarter by specialty highlighting those that have been settled or defended including quantum and costs, the allegations of negligence, lessons learned and the risk score (in accordance with risk-scoring matrix within Corp/Proc/006 Carrying Out A Risk Assessment and Developing a Risk Register and Board Assurance Framework (see section 7) Co-ordinated approach to the Aggregation of Incidents, Complaints and Claims The Trust utilises the combined Complaints, Litigation, Incidents and Patient Relations (CLIP) aggregated report to provide a comprehensive overview of themes arising from complaints, claims incidents and Patient Relations enquiries as identified in the Systematic Approach to Managing Incidents, Complaints and Claims Corp/Pol/155 (see section 7) Frequency With Which An Aggregated Analysis of Incidents, Complaints and Claims Is To Be Completed On a quarterly and annual basis the combined CLIP aggregated report will be completed and submitted to the Learning From Incidents and Risks Committee by the Solicitor/ Claims Manager. The minutes of LIRC will record the submission and discussion of the quarterly and annual CLIP reports Minimum Content Required Within The Analysis Report, Including Qualitative and Quantitative Analysis The CLIP Reports contain a comprehensive overview of the number and categories of Complaints, Litigation, Incidents and Patient Relations enquiries received by the Trust. The quarterly reports provide comparative information on the previous quarter and the annual report provides comparative information on the previous financial year. The Reports also contain aggregated themes of claims which have previously been the subject of a complaint, incident or Patient Relations enquiry, together with organisational lessons learned/risk issues raised. Page 11 of 38

12 3.4.4 Process for Communicating Aggregated Information To Relevant Individuals Or Groups The quarterly and annual CLIP Reports will be distributed by the Risk Management Department to the members of the Learning from Incidents and Risks Committee, Divisional Directors, Associate Directors Of Operations and will be placed on the Risk Management page on the intranet. 3.5 Process for Managing Claims NHS Litigation Authority Schemes Relevant to the Organisation The NHS Litigation Authority (NHSLA) is a Special Health Authority which indemnifies NHS bodies in respect of both clinical and non-clinical claims. The following NHSLA schemes are relevant to the Trust in respect of clinical negligence and personal injury claims:- Existing Liabilities Scheme (ELS) covers clinical negligence claims where the incident occurred before 1st April, The Trust will participate in the ELS scheme and must comply with the NHSLA s Reporting Guidelines. Clinical Negligence Scheme for Trusts (CNST) covers clinical negligence claims where the incident occurred on or after 1st April, The Trust will participate in the CNST scheme and must comply with the NHSLA s CNST Reporting Guidelines. Liabilities to Third Parties Scheme (LTPS) forms part of the NHSLA s Non-Clinical Risk Pooling Scheme for Trusts (RPST) and covers personal injury claims where the incident occurred on or after 1st April, The Trust will participate in the LTPS scheme and must comply with the LTPS Reporting Guidelines for Employers Liability and Public Liability claims brought against the Trust under the Employers Liability Act 1969, the Occupiers Liability Act 1984 or where an injury is not as the result of an accident but takes the form of an illness or disease. Employers and public laibility claims valued at under 25,000 and where the date of incident occurs after 1 August 2013 will now be reported via the NHSLA portal directly to the Trust. There are strict time-scales to comply with and a decision on liability must be given within 30 working days for Employers Liability (EL) claims and 40 working days for Public Liability (PL) claims. Claims pursued under this system will be subject to fixed costs. The Solicitor/Claims Manager will identify which scheme applies to each new claim upon receipt. The relevant scheme will then be recorded in the claims file and on the database Action to be Taken to Investigate Clinical Negligence Claims Including Timescales All communication relating to action taken to investigate clinical negligence claims must be documented by the Solicitor/Claims Manager / Claims Secretary and retained in the claims file. Communication can be by telephone, , letter, fax, the NHSLA s electronic claims reporting system or document transfer system or during meetings. All letters, memoranda, statements, Letters Before Action, Letters of Claim, Court Proceedings and Part 36 Offers of Settlement received by the Claims Department must be date stamped by the Claims Secretary as proof of the date of receipt. Page 12 of 38

13 When a Letter Before Action is received by the Claims Department, the following action must be taken :- Action To Be Taken By Claims Secretary : Date stamp letter before action as proof of date of receipt. Create paper file, which, for the conduct of the claim will be held in a lockable filing cabinet. Open file on shared legal directory. Ascertain whether the claim has previously been the subject of a complaint, Patient Relations enquiry, inquest, enquiry from a Litigant in Person/possible claim or had resulted in the completion of an untoward incident report. Complete pro-forma to record whether any of the above correspondence exists and, if so, request the correspondence, record the date requested and date received from the Complaints, Patient Relations and/or Risk Department on the pro forma. Insert completed pro-forma and correspondence in file and save on the shared legal directory. Interrogate HISS to locate all volumes of the claimant s case notes (including any records held on microfilm) and request same. Record in file the date of the request and date received. Ensure that all volumes of claimant s case notes received are transferred into pink case note folders to ensure that they are retained as originals for the life of the claim. Update database of claimant s case notes transferred into pink folders. Create and insert into file an index sheet identifying the name of the claimant, the Ulysses case number, the date received, the date of the alleged incident, CNST/ELS category, the NHSLA reference number (when known), the stages of the claim including timescales and date achieved, the hospital number of the claimant, the dates of the receipt and transfer of case notes and radiology and to whom they have been transferred. If a letter of claim is received to record on index sheet and database the 21 day deadline for acknowledgement of Letter of Claim and 4 month deadline for service of Letter of Response to ensure achievement of deadlines. Pass file to Solicitor/Claims Manager for review/reporting to the NHSLA as per their claims reporting on-line system. Update database and index sheet throughout conduct of claim to ensure compliance with timescales for reporting to NHSLA and Civil Procedure Rules as outlined below and provide accurate extraction on compliance with timescales. Update database throughout conduct of claim in respect of financial data, likelihood Page 13 of 38

14 of payment of compensation being made and estimated financial year of settlement. Upon conclusion of claim, record outcome of claim on database. Close claim, record date of closure on database and archive claims file. Action To Be Taken By Solicitor/Claims Manager The Solicitor/Claims Manager will ensure that the Letter Before Action has been date stamped by Claims Secretary upon receipt. The Solicitor/Claims Manager will review the Letter Before Action in conjunction with the medical records and any incident form, complaints file, Patient Relations enquiry, inquest file, enquiry from Litigant in Person/possible claim. The Solicitor/Claims Manager will commence their investigation and decide whether the claim requires to be reoprted to the NHSLA at an early stage under their reporting criteria ie.likely press interest/novel issue/high value/ litigation risk identified, etc Acknowledge receipt of Letter Before Action, obtain schedule of radiology and/or pathology as required. Notify relevant Deputy Director of Operations via memorandum of receipt of new claim, and provide them with original case notes and a copy of any incident report form/pals enquiry/complaints correspondence/ inquest correspondence, requesting that they :-(a) Provide copy case notes by a specific date to ensure compliance with 40 day disclosure as per Data Protection Act 1998/Access to Health Records Act 1990 (b) Obtain a factual statement from the Consultant(s) in overall charge of the patient s care detailing the patient s episode of treatment which is the subject of the claim, together with a separate covering letter detailing their comments upon the allegations of negligence, in order to ascertain whether they feel the patient s management has been appropriate and to highlight any areas of concern at an early stage (c) Identify Junior Medical Staff and/or Nurses/Midwives involved in the treatment in question and obtain factual statements if they are still employed by the Trust or, if they have left the Trust then provide details of GMC/NMC numbers in the event that statements need to be obtained. To comply with the Data Protection Act 1998/Access to Health Records Act 1990 and the Pre-Action Protocol for the Resolution of Clinical Disputes, ensure that copy medical records are disclosed within 40 days of receipt of the request, unless there is a valid reason why disclosure cannot take place (e.g. ongoing clinical treatment). In these circumstances, the claimant (if s/he is a Litigant In Person) or their Solicitor must be advised why disclosure cannot take place and ensure that disclosure takes place immediately upon the medical records becoming available. Request and obtain, via the Litigant in Person or Claimant s Solicitor, health records held by a third party which are deemed to be necessary to enable the claim to be fully investigated. Page 14 of 38

15 Upon receipt of statements, irrespective of the severity of the event, undertake a preliminary analysis by reviewing the available evidence, including any root cause analysis compiled during the incident/complaints investigation, which must be tested against the legal criteria of breach of duty and causation, to ascertain whether there is a realistic prospect of a claim being made. Clinical negligence claims, which the Solicitor/Claims Manager identifies as posing a significant risk of litigation following investigations should be reported to the NHSLA immediately upon identification of the risk. When notifying the NHSLA of a risk of litigation matter, the Solicitor/Claims Manager must complete the NHSLA s online claims report form and if requested complete a preliminary analysis as appropriate including a synopsis and chronology, care management problems, comments on breach of duty and causation, quantum, claimant s funding, risk management implications, whether the claim is deemed to be a low/medium or high risk of settlement, reference to whether the incident is a Never Event, an action plan etc. As required by the claims report form the Solicitor/Claims Manager must supply the NHSLA a copy of all relevant correspondence received from the Litigant in Person or claimant s Solicitor, comments obtained from the clinical staff, any untoward incident report/complaints documentation/ Independent Review documentation/inquest file. Receipt of a Letter of Claim indicates that the formal legal process has commenced. Ensure that the Letter of Claim has been date stamped upon receipt by the Claims Secretary. The NHSLA must be notified of a Letter of Claim within 24 hours of receipt, and the claim reported on the claims management system. When reporting the Letter of Claim to the NHSLA, the Solicitor/Claims Manager must complete the NHSLA online claims report form and if requested complete a preliminary analysis as appropriate including a synopsis and chronology, care management problems, comments on breach of duty and causation, quantum, claimant s funding, risk management implications, whether the claim is deemed to be a low/medium or high risk of settlement, reference to whether the incident is a Never Event, an action plan etc. As required by the claims report form the Solicitor/Claims Manager must supply the NHSLA a copy of all relevant correspondence received from the Litigant in Person or claimant s Solicitor, comments obtained from the clinical staff, any untoward incident report/complaints documentation/ Independent Review documentation/inquest file The Letter of Claim must be acknowledged within 14 days. The letter of acknowledgement must inform the Litigant in Person/Claimant s Solicitor that the correspondence has been referred to the NHSLA, but must not indicate whether the Letter of Claim is deemed to be Protocol compliant in order to enable the NHSLA to seek an extension of time for service of the Letter of Response if required. A Letter of Response must be served upon the Litigant in Person/Claimant s Page 15 of 38

16 Solicitor within 4 months, unless an extension of time for service is agreed with the Litigant in Person/Claimant s Solicitor by the NHSLA. Ensure that Court Proceedings have been date stamped upon receipt by the Claims Secretary. The service of Court Proceedings upon the Trust (including issuing of Protective Proceedings) must be notified to the NHSLA immediately upon receipt to ensure that Acknowledgement of Service takes place within fourteen days and service of the Defence takes place within twenty eight days, unless an extension for service of the Defence is agreed with the Litigant in Person/Claimant s Solicitor by the NHSLA. Ensure that a Part 36 Offer of Settlement has been date stamped upon receipt by the Claims Secretary. A Part 36 offer of settlement must be notified to the NHSLA immediately upon receipt by DTS to ensure that punitive consequences do not follow from offers made under Part 36 of the Civil Procedure Rules which are either rejected or fall out of time, which ultimately prove to be successful. A request for an extension of the limitation period from the Litigant in person/claimants solicitor must be notified to the NHSLA immediately upon receipt by DTS to request urgent instructions. Liaise with NHSLA and/or appointed Panel Solicitors to complete necessary investigations until claim is concluded either by out of court settlement, withdrawal following denial of liability or trial. Regarding risk issues to identify remedial action required to prevent a recurrence, provide a risk report/ action plan for submission to LIRC and monitor progress of risk report/ action plan until changes in practice have been implemented. Inform Deputy Directors of Operations/witnesses of outcome of claim via memorandum. Arrange for file to be closed on database. Arrange for file to be archived Action to be Taken to Investigate Personal Including Timescales All communication relating to action taken to investigate personal injury claims must be documented by the Solicitor/Claims Manager / Claims Secretary and retained in the claims file. Communication can be by telephone, , letter, fax, the NHSLA s electronic Document Transfer System or during meetings. All letters, memoranda, statements, Letters of Claim, Court Proceedings and Part 36 Offers of Settlement received by the Claims Department must be date stamped by the Claims Secretary as proof of the date of receipt. Page 16 of 38

17 Receipt of a Letter of Claim indicates that the formal legal process has commenced. When a Letter of Claim is received by the Claims Department, the following action must be taken :- Action To Be Taken By Claims Secretary Date stamp Letter of Claim as proof of date of receipt. Create paper file, which, for the conduct of the claim will be held in a lockable filing cabinet. Open file on shared legal directory. Ascertain whether the claim has previously been the subject of a complaint, Patient Relations enquiry, inquest, enquiry from a Litigant in Person/possible claim or had resulted in the completion of an untoward incident report. Complete pro-forma to record whether any of the above correspondence exists and, if so, request the correspondence, record the date requested and date received from the Complaints, Patient Relations and/or Risk Department on the pro forma. Insert completed pro-forma and correspondence in file and save in shared legal directory. Interrogate HISS to locate all volumes of the claimant s case notes (including any records held on microfilm) and request same. Record in file the date of the request and date received. Ensure that all volumes of claimant s case notes received are transferred into pink case note folders to ensure that they are retained as originals for the life of the claim. Update database of claimant s case notes transferred into pink folders. Create and insert into file an index sheet identifying the name of the claimant, the Ulysses case number, the date received, the date of the alleged incident, the NHSLA reference number (when known), the stages of the claim including timescales and date achieved, the hospital number of the claimant, the dates of the receipt and transfer of case notes and radiology and to whom they have been transferred. Record on index sheet and database the 21 day deadline for acknowledgement of Letter of Claim and 4 month deadline for service of Letter of Response to ensure achievement of deadlines. Pass file to Solicitor/Claims Manager for review/report to the NHSLA as per their claims reports system online. Update database and index sheet throughout conduct of claim to ensure compliance with timescales for reporting to NHSLA and Civil Procedure Rules as outlined below and provide accurate extraction on compliance with timescales. Update database throughout conduct of claim in respect of financial data, likelihood of payment of compensation being made and estimated financial year of settlement. Page 17 of 38

18 Upon conclusion of claim, record outcome of claim on database. Close claim, record date of closure on database and archive claims file. Action To Be Taken By Solicitor/Claims Manager Ensure that Letter of Claim has been date stamped upon receipt by Claims Secretary. The Letter of Claim must be acknowledged within 21 days. The Claimant s Solicitor should be informed that the matter has been reported to the NHSLA. Notify relevant Executive Director/DDOP/Departmental Manager/Physical Risk Manager of receipt of Letter of Claim and request disclosure of all relevant documents, including any root cause analysis compiled during the incident/complaint investigation, statements and comments on the allegations of negligence. If the claimant is an employee of the Trust, obtain earnings details and evidence of training undertaken by the employee. If claim relates to cleaning services provided by contractor, liaise with contractor to obtain all relevant documentation. Undertake a preliminary analysis as appropriate by reviewing the available evidence, which must be tested against the legal criteria of breach of duty and causation, to ascertain whether there is a realistic prospect of a claim being made. Letter of Claim to be reported to NHSLA, using the NHSLA online claims management system and as appropriate to complete the NHSLA Disclosure List indicating which documents are enclosed by means of a tick in the appropriate box. Failure to submit all necessary documents when reporting a new claim will result in the NHSLA not accepting the claim into the Scheme who will hold the claim pending receipt of all documents. If the documents are not submitted by the Trust within 1 month of first receipt of the papers at the NHSLA, the Authority reserve the right to reject the claim. Include within report to the NHSLA views on whether or not the Trust feels the claim is defensible. Letter of Response to be served within 3 months, unless extension of time for service is agreed by NHSLA with Claimant s Solicitor. Ensure that Court Proceedings have been date stamped upon receipt by the Claims Secretary. The service of Court Proceedings upon the Trust (including the issuing of Protective Proceedings) must be notified to the NHSLA immediately upon receipt, to ensure Acknowledgement of Service within 14 days and Defence within 28 days, unless extension of time for service is agreed by NHSLA with Claimant s Solicitor. Page 18 of 38

19 Ensure that a Part 36 Offer of Settlement has been date stamped upon receipt by the Claims Secretary. A Part 36 offer of settlement must be notified to the NHSLA immediately upon receipt by DTS. Obtain, via the claimant s Solicitor, copy health records held by a third party which are deemed to be necessary to fully investigate the claim. Liaise with NHSLA and/or appointed claims investigator and Panel Solicitors to complete necessary investigations until claim is concluded either by out of court settlement, withdrawal following denial of liability or trial. Ensure settlement of invoices relating to quantum/costs/handling fees within timescales indicated by NHSLA/Panel Solicitors. Regarding risk issues to identify remedial action required to prevent a recurrence, prepare a risk report/ action plan for submission to Learning from Incidents and Risks Committee and monitor progress of risk report/ action plan until changes in practice have been implemented. Arrange for file to be closed on database and notify relevant Managers/witnesses of outcome of claim via memorandum. Arrange for file to be archived. In respect of EL and PL claims being notified to the Trust by the NHSLA under the Portal (claims worth less than 25,000 and where date of incident is after 1 August 2013) to follow the above steps but within a stricter timescale. The Division will be given 14 days to provide relevant documentation and statements. We will then have between 16 days for EL claims and 26 days for PL claims to discuss with the NHSLA whether the claim should be admitted or defended. Claims reported under the portal will be subject to fixed costs Communication with Relevant Stakeholders Communication can be by telephone, , letter, fax, the NHSLA s electronic claims reporting and document transfer system or during meetings. During the conduct of claims/inquests, it will be necessary for the Solicitor/Claims Manager to communicate with relevant Stakeholders, including the National Health Service Litigation Authority, Trust Solicitors, NHSLA Panel firms of Solicitors, Claimants Solicitors, Litigants In Person, Strategic Health Authority, ISS Mediclean. In the event of a claim arising from a serious incident, there may be the need for the Solicitor/Claims Manager to communicate with external agencies e.g. HM Coroners, Police, HSE. All communication with stakeholders/external agencies must be documented by the Solicitor/Claims Manager/Claims Secretary and retained in the claims file. Page 19 of 38

20 3.5.5 Open and Effective Communication Process For Encouraging Open Communication Between Healthcare Organisations, Healthcare Teams, Staff and Patients and/or Their Carers The process for encouraging open communication is via the Trust adopting the National Patient Safety Agency s guidance on Being Open and, through its Patient Safety Strategy (Corp/Strat/020, see section 7), which advocates an open and fair culture via adverse incident reporting by staff, acknowledging mistakes, learning from them and taking action to put things right. The Trust acknowledges that being open when communicating with patients/carers or their legal representatives about what has happened promptly, fully and compassionately can help them cope better with the after effects when things have gone wrong. Throughout the investigation of a claim, the Solicitor/Claims Manager will ensure that open communication takes place with healthcare organisations, healthcare teams, staff, patients and/or their carers. Communication can be by telephone, , letter, fax, the NHSLA s electronic claims reporting and document transfer system or during meetings. All communication will be documented in the claims file by the Solicitor / Claims Manager / Claims Secretary Process for Acknowledging, Apologising and Explaining When Things Go Wrong The NHSLA issued updated guidance on 1st May, 2009 entitled Apologies and Explanations to patients or their relatives when there has been an adverse outcome, which is endorsed by the Medical Defence Union, Medical Protection Society, Medical and Dental Defence Union of Scotland, Royal College of Nursing, National Patient Safety Agency, British Medical Association and the General Medical Council. This guidance encourages Trusts to acknowledge when there have been shortcomings in treatment, and the provision, in good faith, of meaningful apologies, explanations and expressions of sympathy. NB. The NHSLA is clear that apologies and explanations in this context should not indicate admissions of liability. When admissions of breach of duty and causation have been made following the conclusion of the investigation of clinical negligence claims, and if thought to be appropriate the claimant or their representative will receive a Letter of Apology signed by the Chief Executive. The Solicitor / Claims Manager must ensure that the content of a Letter of Apology, addressed to the claimant or their representative, is agreed in writing with the NHS Litigation Authority prior to signature by the Chief Executive. The Letter of Apology will acknowledge and include an explanation of what went wrong, and confirm action taken to prevent a recurrence where appropriate. A copy of the signed Letter of Apology will be retained in the claims file Requirement for Truthfulness, Timeliness and Clarity of Communication All communication by the Solicitor/Claims Manager /Claims Secretary relating to claims/inquests during the life of the claim/inquest must be documented, held within the claims/inquest file and must be truthful, timely and unambiguous as the decision on whether to defend a claim to trial is based upon the information collated throughout the life Page 20 of 38