COMPENSATION CLAIMS MANAGEMENT PROCEDURE (Clinical Negligence and Personal Injury Litigation)

Transcription

1 VELINDRE NHS TRUST REF: BLACK 8b COMPENSATION CLAIMS MANAGEMENT PROCEDURE (Clinical Negligence and Personal Injury Litigation) Policy Lead: C. Hamblyn, Legal Services & Governance Manager Ref: Black 8b Page 1 of 34

2 CONTENT Executive Summary Page 1.0 Background Potential Claims New Claims Action Upon Receipt of a New Claim Instructing Solicitors Pre-Action Protocols Procedure for Handling Claims Litigants in Person Disclosure Deadlines for Responding to Claims Making Decisions on Liability Court Proceedings Assessment of Quantum and Settlement Delegated Limits for the Settlement of Claims Learning from Events Trust Organisational Learning Committee Using Risk Registers NPSA Reporting Claims for Reimbursement on the Welsh Risk Pool Audit Indemnity 20 Ref: Black 8b Page 2 of 34

3 22.0 Support for Staff Involved i n Claims Reporting Procedures Claims Review Procedure Escalation Procedure File Closure Procedure 26 Appendices A. File Opening Form 27 B. File Closing Form 28 C. Flow Chart 29 D. Documentation List 30 E. Learning from Events Process Flowchart 31 F. Informal Claims Settlement Flowchart 32 G. Standard Disclosure Lists 33 Ref: Black 8b Page 3 of 34

4 Overview: EXECUTIVE SUMMARY This procedure which is designed to set out the procedure for the day to day management of claims received by Velindre NHS Trust and supports the strategic objectives set out in the Velindre NHS Trust Policy on the Management of Compensation Claims. The requirements of Section 8 of the Putting Things Right Guidance form the basis of the procedure for the day to day management of claims. Who is the policy intended for: All Trust Staff Key Messages included within the policy: This procedure is an integral part of the Trust s Quality & Risk Management Strategy and is intrinsically linked to the Trust s systems for managing and learning from concerns. The Trust will learn lessons from claims and take actions to reduce risk and improve safety for the future. The Trust will adhere to the requirements of the Pre-Action Protocols for the resolution of Clinical Negligence and Personal Injury claims, ensuring a constructive and open approach to claims that reduces delays and costs and the need for formal legal action. Divisions and Staff involved with claims will be kept informed of the progress and outcome of all individual cases via the Legal Services & Governance Manager or Divisional Lead for Claims where appropriate. The Trust will comply with the rules and procedures of the Welsh Risk Pool Services as appropriate. Responsibilities: The Executive Director of Nursing & Service Improvement has responsibility for Claims Management and will keep the Board informed of all significant issues pertaining to the Trust claims. The Legal Services & Governance Manager is responsible for operational claims management which includes the conduct and control of all claims. All Staff are required to co-operate fully and openly with the examination or investigation of any clinical negligence or personal injury claim and to comply with this policy and procedure. Additional Information: For more information or advice in relation to Claims Management please contact the Legal Services & Governance Manager (Claims Manager) on or via cally.hamblyn@wales.nhs.uk IF YOU INADVERTENTLY RECEIVE ANY DOCUMENTATION IN RELATION TO LEGAL CASES PLEASE FORWARD TO THE CORPORATE SERVICES MANAGER IMMEDIATELY PLEASE NOTE THIS IS ONLY A SUMMARY OF THE POLICY AND SHOULD BE READ IN CONJUNCTION WITH THE FULL POLICY DOCUMENT. Ref: Black 8b Page 4 of 34

5 COMPENSATION CLAIMS MANAGEMENT PROCEDURE 1.0 Background 1.1 This procedure is designed to set out the procedure for the day to day management of claims received by Velindre NHS Trust and supports the strategic objectives set out in the Velindre NHS Trust Claims Policy. The requirements of Section 8 of the Putting Things Right Guidance form the basis of the procedure for the day to day management of claims.whc (99)128 Handling Clinical Negligence Claims: Pre Action Protocol for the Resolution of Clinical Disputes and other guidance, as well as the Welsh Risk Pool Concerns and Compensation Claims Management Standard. 1.2 The responsibility for the approval of the Trust Claims Procedure has been formally delegated by the Trust in Section 10 of the Claims Policy, to the Trust Quality & Safety Committee and Executive Board. 1.3 Public Health Wales has a service level agreement in place with Velindre NHS Trust which provides access to the Velindre NHS Trust Claims Manager, who will manage claims on behalf of both organisations in line with the process outlined in this procedure. 2.0 Potential Claims 2.1 Every concern (incident or complaint) has the potential to become a claim and the quality of investigations undertaken by the Trust under its Risk Management Strategy and Incidents and Hazardous Reporting Procedure should place it in a good position to manage future litigation. 2.2 There will always be some cases, concerns that pose a greater litigation risk than others. The Legal Services & Governance Manager who acts as the Claims Manager should be notified of these cases, reported concerns which could potentially result in a claim immediately and should be provided with copies of the investigation and have involvement in investigations as appropriate. This will ensure that all information is gathered at the earliest possible opportunity to enable the Trust to effectively manage any future litigation. 2.3 The Trust Risk Leads, Concerns Leads, Senior Investigations Manager and Claims Manager will liaise regularly to ensure the pro-active identification of potential claims and thorough and robust investigation of such incidents and complaints which have the potential to become claims. 2.4 All concerns (incidents, complaints and claims) are recorded on the Trust s Datix database and linked as appropriate to facilitate the identification of potential claims and ensure a single seamless investigation. Ref: Black 8b Page 5 of 34

6 3.0 New Claims 3.1 The Claims Manager will formally open a new claim record upon receipt of one of the following: A request for Health Records, which indicates an action for Clinical Negligence as being contemplated against the Trust. A letter providing details of allegations of clinical negligence or personal injury that can also be described as a Letter of Claim A request for compensation to be paid arising out of an incident involving NHS staff or services. 4.0 Action Upon Receipt of a New Claim 4.1 Upon receipt of a new claim the Claims Manager will:- Acknowledge the claim in writing Where appropriate instruct relevant solicitors to act on behalf of the Trust Notify the Executive Director responsible for claims (this may be achieved by the provision of the quarterly claims reports) Notify the Risk Manager (this may be achieved by the provision of the quarterly claims listings) Notify any other appropriate personnel which may include relevant professional leads Information on any claims received involving occupational stress, bullying or harassment will also be referred to the Executive Director of Workforce and Organisational Development. Set up a record of the claim on the Claims Management Database- Datix and the Losses and Special Payments Register (LASPAR) Advise the Concerns Leads in Divisions and request copies of any complaints file where applicable. Report the Claim on the next quarterly report for submission to the Trust Quality & Safety Committee and other Trust Committees as appropriate. Contact relevant personnel for the release of Clinical and Personal Records as appropriate 5.0 Instructing Solicitors 5.1 The Trust currently engages the services of Legal & Risk Services (L&RS) for the Case Management of Clinical Negligence and Personal Injury Claims received by the Trust as appropriate and necessary. 5.2 The Trust will instruct L&RS in respect of Clinical Negligence and Personal Injury Claims received within the Pre Action Protocol period. L&RS will provide quarterly updates on the progress of all claims during their duration. Ref: Black 8b Page 6 of 34

7 5.3 All instructions to Solicitors for payments of bills related to claims will be made by the Claims Manager. In respect of Clinical Negligence Services, L&RS do not invoice for this service, because of the manner in which they are funded by the NHS in Wales. L&RS will however request payment of disbursements as and when they are incurred during the course of the claim. Payment of such disbursements is governed by the delegated arrangements in place within the Trust. 5.4 The exercise of delegated authority will also include a decision being made by the Claims Manager as to the following issues: The choice/identity of expert witnesses The choice /identity of barristers/counsel The choice/identity costs draftsmen Acquisition of copy records from other parties when necessary. 5.5 At the conclusion of any Personal Injury Case L&RS will submit an invoice for services carried out in respect of that claim. The invoices will be delivered to the Claims Manager and discharged in accordance with the Trust arrangements. 6.0 Pre-Action Protocols 6.1 It is the policy of the Trust wherever possible to complete its investigation and to make a formal determination on issues relating to liability with regard to personal injury and clinical negligence claims within the Pre Action Protocol Period. 6.2 The Trust acknowledges that adherence to the Pre Action Protocol promotes better investigation, and better and earlier exchange of information. It also acknowledges, that adherence to the timescales set out in the protocol should ensure that the Trust is in a better position to settle claims earlier without the need for legal proceedings although it does acknowledge, that where court proceedings are subsequently issued, where a thorough and timely investigation has been undertaken under the Pre Action Protocol, this will enable such subsequent proceedings to run efficiently and to timetable. 6.3 All claims are managed in accordance with the relevant Protocols for Clinical Negligence and Personal Injury Claims pursuant to the Civil Procedure Rules. 6.4 The aim of the Protocol is to encourage settlement of claims without the need for legal proceedings. Settlement is encouraged by promoting openness between parties and co-operation in the process of obtaining the evidence necessary to determine liability and value the claim. Ref: Black 8b Page 7 of 34

8 6.5 The overriding objective of civil litigation is to enable the Courts to deal with cases justly. Claims are governed by a set of Court Rules which are designed to ensure that dealing with a case justly will include so far as practicable the following: Ensuring that all parties are equal footing Saving expense Dealing with the case in ways which are proportionate to the money involved, the importance of the case, the complexity of the issues and the financial position of each party Ensuring that it is dealt with expeditiously and fairly Allotting it to an appropriate share of the Court s resources. 6.6 All claims should be initiated by a Letter of Claim sent by the Claimant to the Defendant. This letter should include sufficient information to enable the Trust to determine when, where and how the Claimant s accident occurred together with a summary of the injuries sustained by the Claimant. 6.7 In order to successfully claim compensation, the Claimant must prove that the accident and injuries were caused by the negligence and/or breach of statutory duty of the Trust. The Claimant has to show that somebody was legally at fault and the perceived reasons for this are set out in the Letter of Claim usually as allegations of negligence and/or breaches of statutory duty The Letter of Claim should also give an indication of any financial loss or expense incurred and continuing as a result of the accident. Once a Letter of Claim has been received, the Trust is required to acknowledge this within 21 days of its receipt failing which the Claimant is entitled to commence legal proceedings. In line with the NHS (Concerns, Complaints and Redress arrangements) (Wales) Regulations 2010, the Claims Manager when acknowledging the letter of claim will offer the opportunity for the allegations to be investigated under the concerns route and provide the claimants solicitors with the relevant information where appropriate Once the Trust has acknowledged the Letter of Claim, it has a maximum of 3 months to investigate the claim and to respond to the Claimant s Solicitors. In this response the Trust, in conjunction with L&RS, must state whether or not it accepts that it was at fault. If the former, this is known as accepting liability If it is not accepted that the Trust was at fault, then the Trust, in conjunction with L&RS, must provide the Claimant with a detailed explanation for this denial. In addition where there is a denial of fault, then it is necessary to enclose with the Letter of Reply all the documents which are relevant to the issues in dispute which support the case but also any which may in fact hinder the case. Ref: Black 8b Page 8 of 34

9 6.12 In some cases the Trust accepts some of the blame but also feels that the Claimant is partially to blame for the incident and the injuries suffered. In such circumstances, the Trust, in conjunction with L&RS, will have to give a full explanation as to why it considers the Claimant to be partly to blame and again where there are any documents relevant to this these must be provided Where liability is accepted, the parties can then turn their attention to valuing the claim. This includes obtaining the Claimant s Schedule of Special Damages which prove any losses or expenses which has been incurred as a consequence of the injury. In addition, medical evidence will be obtained to explain exactly what injuries have been sustained by the Claimant, the treatment received and the extent to which the Claimant will or will not make a full recovery Where the Trust does not accept that it is at fault, then detailed reasons must be provided in support of the refusal and further all the documentation which the Trust relies upon in support of its denial must be served at the time the Letter of Response is sent This is to enable the Claimant s Solicitors to consider the Trust s response and documentation so that if they on the basis of the evidence provided believe that the Claimant s case will fail, then the claim will not be pursued. If on the other hand following the review of the reply provided, they still feel that the case will be successful, then Court proceedings can be commenced The intention was that the steps set out above would become the normal and reasonable response to Personal Injury claims. Where Solicitors do not follow the protocol, if proceedings are subsequently issued the Court will take into account the fact that the protocol has not been followed which can have adverse consequences The specific implications for the Trust in relation to compliance with the Protocol include the following:- The Trust is required to disclose relevant documentation within 3 months of receiving the claim. Standard disclosure lists are set out in the protocol and the standard disclosure list is attached at Appendix G. The Trust is obliged to give disclosure of all relevant documentation failing which it is obliged to provide a detailed explanation as to why it can not be provided. The Claimant may issue and application for pre-action disclosure of documentation. Such applications can routinely cost the Court between 500 and 1,000 in wasted costs and further, if the order is breached and there is a failure to provide the documentation, the Trust can then not rely upon that documentation if it is subsequently found. Ref: Black 8b Page 9 of 34

10 The Trust can be penalised in awards of costs and interest especially if non-compliance with the Protocol has led to the commencement of proceedings which might ordinarily have been avoided or costs incurred unnecessarily. Applications can be brought by Claimant s for failure to comply with the Protocol which again results in wasted costs, of anything from 500-1,000. Further costs can be awarded on an indemnity basis which is higher than usual. The Court may order the Trust to pay money into Court if it has without good reason failed to comply with the Pre-action Protocol. The monies paid into Court will act as a security for any damages subsequently found to be payable within the proceedings including costs. Further in such cases the court can order the party in default of the Protocol to pay the other parties costs on an indemnity basis. This means a full recovery of all legal and other costs at a higher level than usually payable Compliance with the Protocol can not be understated. The time limit for the investigation of the claim and provision of documents is limited to 3 months failing which any of these sanctions may be imposed. This costs the Trust money in wasted costs, but evidentially where documents have not been disclosed this can prevent the Trust from effectively defending claims The Trust will use the Pre-Action Protocol Period to ensure that every effort is made to discuss and negotiate resolution and settlement of claims prior to court proceedings, following a thorough investigation and determination of the liability issues on the basis of expert advice received. Where necessary, the Trust will enter in face to face or mediation type meeting with the Claimant and/or the Claimant s solicitors to facilitate such negotiated resolution. 7.0 Procedure for Handling Claims 7.1 The Claims Manager will ensure that the following steps are undertaken when managing a claim:- Acknowledgement of the claim and notification to all parties concerned. Open case file, and register on relevant data bases setting up a record of the claim Complete file opening checklist Establish an account of the original incident Identify and maintain all records relating to the incident Obtain statements from front-line staff involved in the incident giving rise to the claim Ref: Black 8b Page 10 of 34

11 Gather and collate all relevant information and/ or evidence for forwarding to solicitors instructed Obtain in-house or external expert view in conjunction with the Trust s solicitors as appropriate Deal with telephone, and letter queries from solicitors, experts, and others Develop case action plan as appropriate Maintain an appropriate claims review system After having established a relationship with all staff involved in the claim, to maintain that relationship and meet on a regular basis to discuss and pre-empt any concerns with staff Identify any resources required e.g. support required for the collation of evidence Involvement in the choice of medical experts Insuring relevant types of support are available and advised upon e.g. Line Manager or Claims Manager, peer support from colleagues across the Trust who have been involved in a similar experience, professional support from Occupational Health or Specialist Experts, etc Provide witness training for any individuals who are likely to be called to court (provided either individually or on a group depending upon the circumstances and appropriateness) Arrange regular meetings as required with staff, experts, counsel and Legal Advisors who will advise where appropriate. Ensure that requests for payment are authorised and passed to the Accounts Department for processing Instruct solicitors when appropriate and monitor their involvement and costs Negotiate out-of-court settlements as appropriate Consider all options relating to the use of Alternative Disputes Resolution and/or Mediation as appropriate in each case Liaise with the Welsh Risk Pool and all relevant third parties Following the decision to resolve the claim, to set up a review group for the completion of Annex B, Annex B Data Request and action plans If appropriate and in consultation with the Quality & Safety Manager, include any relevant risks identified on the Trust s Risk Register 7.2 Relevant information will include: Clinical Negligence documentation:- Patient s medical records with signed consent form from the Claimant or their next of kin Authority to release records from all consultants named in the records Statements from all medical, nursing and other staff involved with the patient s care at the time of the alleged incident Personal injury documentation:- Personnel file Ref: Black 8b Page 11 of 34

12 Earnings details 13 weeks prior to incident and for the duration of sickness absence immediately following the incident Incident report form (IR1) RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences) regulations Minutes of the Adverse Incident Group meeting where the incident was considered (if appropriate) Occupational Health records Pre and post incident risk assessments Witness statements Photograph of site of incident (if relevant) The investigation management and conduct of all claims and the conduct and control of all claims documentation is the responsibility of the Claims Manager. 8.0 Litigants in Person 8.1 The Trust acknowledges that claims management systems should embrace and allow for more pre action contact with Claimants. 8.2 To facilitate this and also to support the spirit and intention of the NHS (Concerns, Complaints and Redress Arrangement) (Wales Regulations 2010), the Claims Manager should be notified immediately of any reported incidents or complaints which could potentially result in a claim or redress. 8.3 Such potential claims which are identified from incidents or complaints or where a Claimant does not have Solicitors acting and is acting effectively as a litigant in person, will be managed and investigated in accordance with this procedure in compliance with the NHS (Concerns, Complaints and Redress Arrangement) (Wales) Regulations The Trust has developed an informal claims settlement process which is set out in the flowchart contained in Appendix E. This informal claims settlement process facilitates more Pre Action contact with Claimants where claims are identified from sources other than a request for health records or a formal Letter of Claim. 8.4 Every effort will be made during the informal claims settlement process to liaise with the service user and enter into dialogue with them including face to face discussions where appropriate regarding the claim. 8.5 The procedure also provides for the early evaluation of the claim by appropriate experts be they internal or external clinical experts or legal experts. This may include as and when necessary and appropriate the use of relevant alternative dispute resolution mechanisms or medication. 8.6 The objective of the informal claims settlement process, is to facilitate wherever possible the internal and/or pro active resolution of claims which minimises expenditure on legal costs and stress to staff involved. The Trust Ref: Black 8b Page 12 of 34

13 will therefore consider Alternative Disputes Resolution methods including Mediation in appropriate cases to facilitate negotiated resolution of cases. 9.0 Disclosure 9.1 Internal Disclosure: on receipt of a claim for Clinical Negligence or Personal Injury, the Claims Manager will make a request for records in the interests of gathering relevant documentation complying with the obligation of disclosure under any pre action disclosure that may have been triggered The Claims Manager will write to the relevant lead in the Trust to relay the request for information as quickly as possible upon receipt of a Form of Authority requesting release of Service Users Records where that request is received by the Claims Manager. Where the Claim is received direct by the Department, the Department will notify the Claims Manager and provide a copy of all records disclosed to the service user Where a claim is made by an employee of the Trust, the Trust is legally obliged to disclose earnings information within the period of time stipulated by the Pre-Action Protocol for Personal Injury Claims. Therefore the Claims Manager will request earnings details via the Human Resources Department for the 13 week period prior to the accident date and thereafter together with details of wages paid whilst on sick leave as a result of the accident. In addition to details of any increments or overtime which may have been paid in that post accident period.the Claims Manager may also be required to obtain release of the other Personal Records such as Personal or Occupational Health Records providing where appropriate Forms of Authority requesting release of the Records. 9.2 Disclosure to Third Parties: the Trust will ensure that appropriately documented claims for disclosure of health records and other appropriate records will be made in accordance with the requirements contained under the Data Protection Act 1998 and the Access to Health Records Act The Trust will ensure wherever possible adherence to the 40 day time limit for the disclosure of records acknowledging, that the better and earlier exchange of information acknowledging the benefits and the better and earlier exchange information and provision of documentation. Ref: Black 8b Page 13 of 34

14 10.0 Deadlines for Responding to Claims 10.1 The tables set out below sets out the key obligations of the Trust under the pre-action protocols for Clinical Negligence or Personal Injury Claims. Clinical Negligence Protocol Provide a letter of acknowledgement within 21 days of receipt of a letter of a claim Provide confirmation that a claim is admitted within 3 months of receipt of the letter of claim OR Provide a detailed letter of response within 3 months of receipt of the letter of claim if following investigation the claim is to be denied Any documents that the defendant relies upon to support that denial are to accompany the letter of response. The Medical Records will ordinarily have been already disclosed, however, the Trust must ensure that complaints documents and documents gathered during investigations that were not instigated in contemplation of proceedings have been disclosed Where any documentation has become lost the Claims Manager may ask the relevant Department Head to provide a witness statement setting out the searches that he or she has caused to be undertaken or alternatively procure such a statement from another responsible person Personal Injury Protocol Provide a letter of acknowledgement within 21 days of receipt of the letter of claim Provide confirmation that a claim is admitted within 3 months of receipt of the letter of claim. Such an admission would be binding in claims worth up to 15,000 OR Provide a detailed letter of response within 3 months of receipt of the letter of claim if following investigation of the claim is to be denied Any documents that the defendant relies upon to support that denial are to accompany the letter of response. Please refer to Appendix G for the standard list of documents that the court expects to be disclosed Where any documentation has become lost the Claims Manager may ask the Department Head to provide a witness statement setting out the searches that he or she has caused to be undertaken or alternatively procure such a statement from another responsible person 10.2 The Trust Acknowledges the importance of the time limits set out in the Personal injury Pre Action Protocol referred to above and acknowledges the better and earlier exchange of information, informs the Pre Action investigation thus placing the Trust to be in a better position to settle Ref: Black 8b Page 14 of 34

15 appropriate claims earlier without the need for Court proceedings, or alternatively ensure where the Trust has a defence to proceedings, that a full fair and detailed investigation has been undertaken at an early stage which places the Trust in a better position to manage the subsequent proceedings served appropriately and in accordance with the Courts time table Where Court proceedings are subsequently issued, the Claims Manager, in conjunction with L&RS, will ensure that the Court proceedings are managed efficiently and wherever possible, ensure adherence to the time scale for directions set by the Court Making Decisions on Liability 11.1 A decision on liability can be made at any time during the course of a claim dependant upon the outcome of the investigations undertaken. The Claims Manager will make every effort where possible to negotiate settlement of cases prior to the issue of Legal Proceedings but it is the objective of the Trust to make responsible and reasonable decisions on liability at the earliest possible stage of the claims dependant on the expert and legal advice given. Denial : where the Claims Manager recommends maintaining a denial of liability in respect of a claim, a letter of advice will be provided to the Divisional Claims Leads and the Executive Director responsible for claims as appropriate. Admissions where the advice is to make an admission of liability: the Claims Manager will consult with all relevant personnel involved in the case to ensure that they have an opportunity to comment on the proposed course of action and dependant upon the value of the case the Claims Manager will seek ratification from the Executive Director responsible for claims and Divisional Claims Leads as appropriate. Alternative dispute resolution: at any state of the claim, consideration can be given to whether any appropriate method of alternative dispute resolution can be employed to resolve the claim. Any such case that the Claims Manager deems is appropriate, will be discussed with the Executive Director responsible for claims. Referral to the Welsh Government: in cases where referral is required, this will be undertaken by L&RS on behalf of the Trust although the conduct of the claim will remain with the Trust, notification will be made in respect of the following cases:- o Where the damages on a claim exceed or are anticipated to exceed 1 million. o Where any claims involve novel, contentious or repercussive payments or issues or include potential class actions or in actions Ref: Black 8b Page 15 of 34

16 12.0 Court Proceedings where an adverse incident would set an unfortunate precedent for the NHS as a whole Where proceedings are issued and served on the Trust, the Claims Manager and/or L&RS will ensure that the Acknowledgment of Service Form is filed at the court within the fourteen days of being served with the proceedings. Following service of the Claim Form, the Trust has a strict deadline of 28 days in which to provide its defence or to obtain an extension of time thereto The Claims Manager in conjunction with L&RS will ensure that Court proceedings are run efficiently and to time table throughout the duration of the claim Where a claim is also the subject matter of a concern i.e. NHS (Concerns, Complaints and Redress arrangements) (Wales) Regulations 2010, the Trust will continue with the complaints investigation and response until such time as court proceedings are formally served upon the Trust. Pending such action, the Claims Manager and Concerns Manager will work together to ensure that appropriate investigations and responses are undertaken. In line with the NHS (Concerns, Complaints and Redress arrangements) (Wales) Regulations 2010, the Claims Manager when acknowledging the letter of claim will offer the opportunity for the allegations to be investigated under the concerns route and provide the claimants solicitors with the relevant information Assessment of Quantum and Settlement 13.1 Assessment and settlement of damages may occur at the same time as an admission of liability, but more usually follow at a later date when further evidence in relation to medical condition and prognosis have been gathered and/or schedules of special damages have been served on each party Quantum will be assessed using the Judicial Studies Board Guidelines and relevant case authorities obtained from Lawtel or Kemp & Kemp and in appropriate cases, the Trust, may seek independent expert evidence from a variety of disciplines to assist in valuing the damages claim including Counsel Negotiation of Quantum with Litigants-in-person: In such cases, the Claims Manager will provide the litigant-in-person with a breakdown showing how the quantum has been calculated. This will include a special damages calculation based upon the information provided by the litigant-in-person and evidence to support the calculation of general damages including copy documentation in support which may include:- Ref: Black 8b Page 16 of 34

17 Judicial Studies Board Guidelines Lawtel Kemp & Kemp Decided Case Authorities In the event that the offer is not acceptable to the litigant-in-person, the Claims Manager will offer to instruct an independent barrister to value quantum on the basis of the above and other relevant information and the Trust agrees to abide by the decision of the barrister To show impartiality, the Trust will provide a list of Counsel specialising in the relevant subject area, drawn from Chambers which are not used by the Trust. The list can be supported with the CVs of each barrister and a copy of the instructions should be provided to the litigant-in person for consideration and agreement The choice of barrister will by made by the litigant-in-person and the Trust agrees to abide by the decision of the nominated barrister This process is set out in flowchart contained in Appendix E Delegated Limits for the Settlement of Claims 14.1 The delegated limits within the Trust are in accordance with the Trust s standing financial instructions and scheme of delegation as set out below: Velindre NHS Trust Matter Delegated Approving individual losses and special payment claims in accordance with current Assembly guidance: Up to 5000 up to 100,000 Over 100,000 and up to 1,000,000 Over 1,000,000 Notes: These limits relate to damages and/or costs payable Public Health Wales Trust Approving Officer Claims Manager (Legal Services & Governance Manager) Chief Executive/Executive Director of Nursing &Service Improvement. Trust Board Welsh Government Approving individual losses and special payment claims Delegated authority Up to 1,000 Claims Manager Up to 500,000 Chief Executive 500,000 up to 1 million Public Health Wales Board Over 1 million Welsh Government Notes: These limits relate to damages and/or costs payable Ref: Black 8b Page 17 of 34

18 14.2 Amounts of over 1 million require authorisation from the Welsh Government Learning from Events 15.1 It is important that the Trust makes constructive use of information which arises from clinical negligence and personal injury claims and that any remedial action where appropriate is taken to prevent or minimise the risk of further occurrence In order to reduce the risk to the Trust, every claim will be closely reviewed, with the assistance of the Medical Director, Executive Director responsible for claims, Quality & Safety Manager and the Health and Safety Manager and other Heads of Service as appropriate. The aim is to identify the failures in the systems, which led to the claim Root cause analysis following a thorough investigation maybe undertaken to reveal the latent factors, which led to the circumstances of the claim, ensuring that remedial action is identified and taken To initiate the process, the Claims Manager will provide a claims review to the relevant Divisional/Departmental Lead as and when failings are identified and/or claims are finalised. This review will identify the failings identified and/or outcome of the claim in addition to any lessons learnt or areas of best practice. The Claims Manager will be available to present the review at any relevant meetings if required. It is essential, that the appropriate Director receives details of alleged negligence as soon as the claim is received by the Trust and is requested where appropriate to provide a preliminary report. The relevant Director in association with the Clinical staff involved (as appropriate) will take remedial action within their team/division/department as necessary and inform the Claims Manager of this action. The Director is responsible for initiating an internal review of the claim, which will determines what action is necessary within the Division The Trust acknowledges that because of its small claims profile it may not be appropriate for it to dedicate a group or committee to specifically review claims in each Division or Department. However it will convene individually commissioned Task and Finish Groups to include appropriate specialists within the relevant Directorate or Department from which the claim emanates. The group will: Identify the failures in the systems which lead to the claim Ensure that remedial action is identified Ensure the remedial action is taken Ensure that there are appropriate auditing and monitoring processes in place 15.6 Thereafter, the information and Action Plans provided will be used to inform the completion of the Appendix T documentation (including the Appendix T Data Request) on the conclusion of the claim. Ref: Black 8b Page 18 of 34

19 15.8 The process includes the Claims Review Process is shown in Appendix F Trusts Organisational Learning Committee 16.1 From a governance perspective, all claims reviewed by a relevant Task and Finish group and action plans prepared and completed will be reviewed and monitored by an existing committee charged with review group responsibilities. These responsibilities are rooted in ensuring that all necessary remedial action emanating from events have been identified, appropriate actions taken and the learning lessons loop has been closed For clinical negligence claims, lessons learned and action plans developed will be reviewed by the Trusts Organisational Learning Committee For personal injury claims, the lessons learned and action plans developed will be discussed at Trusts Organisational Learning Committee Using Risk Registers 17.1 Where risks identified as part of the Learning From Events Process cannot be eradicated or minimised or outstanding requirements for remedial action remain, such risks will be notified to the Quality & Safety Manager or person within the relevant department with responsibility for ensuring that such risks identified are added to the relevant risk register, as appropriate by the Task and Finish Group or relevant Claims Review Group Where a decision is made not to include such risks on the relevant Risk Register, by the Risk Manager or relevant department, the requesting group should be notified in writing with the reasons for the refusal NPSA Reporting 18.1 Where a claim, with an incident date post-dating 1 st January 2004, has been identified as a patient safety incident but was not previously reported through the incident reporting process, the Claims Manager will notify the relevant risk lead or person with responsibility for risk management to ensure that a report is sent to the National Patient Safety Agency (NPSA) via the National Reporting and Learning System (NRLS) retrospectively Claims for Reimbursement on the Welsh Risk Pool 19.1 Usually claims exceeding 25,000 can be the subject of a reclaim by an NHS body from the WRP. Where settlements are made which exceed the current threshold of 25,000, technically the Trust may seek reimbursement of the excess costs above the threshold. The usual process would be to apply to Ref: Black 8b Page 19 of 34

20 the Advisory Board of the WRP, by completion of a WRP1 Claim Form, a Cost Schedule and an Annex B form. To be reimbursed by the Welsh Risk Pool the Trust is required to submit the relevant WRP Reimbursement documentation, and evidence to demonstrate that the learning from events process has commenced. The organisation must have instigated remedial action within 28 days of conceding liability or agreeing to settle a claim, in order for reimbursement claims to be successful. Reimbursement would then be made within ten days after Advisory Board s approval of payment of the claim. Interim payments The above statement applies to any interim payments made The Claims Manager will ensure that the Trust complies with the requirements of the current WRP Reimbursement Procedure Audit 20.1 In order to comply with the requirement of the Welsh Risk Management Concerns and Compensation Claims Standard, the Trust s Internal Audit Service will, each year, undertake an audit of 25% or 25 of all claims (whichever is the fewer number) which should originally be subjected to the WRP Reimbursement Process This will ascertain the accuracy of reports, costs, compensation claims and, further to ascertain that claims/refunds and dealt with in accordance with the Welsh Risk Pool Reimbursement Scheme Indemnity 21.1 The Trust has vicarious liability for all its employees when they are providing core activity services during the course of their employment Welsh Office Circular (98)8 sets out the Trust s responsibilities in connection with the indemnification of staff for clinical negligence claims. The main points are as follows: - The Trust will not seek to recover any proportion of costs from Healthcare professionals or others covered by NHS Indemnity or from any other private indemnity policies they may have The NHS bodies will not be responsible for a Healthcare Professionals private practice even if this is performed in an a NHS Hospital. It is therefore advisable that Professionals who might be involved in work outside his/her Trust employment should have professional liability cover Ref: Black 8b Page 20 of 34

21 Where any Health Professionals are involved in the care of private patients in the NHS setting they would normally be doing so as part of their NHS contract and would therefore be covered by the NHS Support for Staff Involved in Claims 22.1 The Trust will ensure that members of staff who are involved in claims will be supported through the entire process Initially the individual s Line Manager will provide support but the Claims Manager will provide such support and assistance to members of staff involved in litigation as appropriate This will be determined on an individual basis dependant upon the requirements of each individual and can include staff meeting with the Claims Manager to discuss the claims process, visits to working courts, attending moots (mock trials) and the provision of training on how to give evidence in court Reporting Procedures Internal Reporting Procedures 23.1 The Board has delegated its reporting responsibilities to the Quality & Safety Committee as the duly authorised committee to received claims information and reports on behalf of the Trust Board The Quality & Safety Committee will receive and review and recommend action as necessary on a quarterly progress report on the management and status of claims against the Trust. The minutes of the Quality & Safety Committee will be provided to the Board for information purposes The Audit Committee will receive a detailed report including the following information: The payments made in the quarter. The value per payment type is summarised in Appendix A with the detail of the payments in Appendix B. Amounts paid out i.e. how many payments the Trust made and in respect of how many cases. Amounts reclaimed i.e. if there was a request for reimbursement on the WRP that quarter. The claim profile for the Trust i.e. the number of ongoing cases by type In addition, the Quality & Safety Committee and Audit Committee will receive an Annual Report which will satisfy the requirements of section 8 of the PTR Regulations, and include information on: The Trust s claims profile and claims management record Key issues and/or major developments affecting the Board Ref: Black 8b Page 21 of 34

22 Number of claims Aggregate value of claims in progress Details of any major claims Progress and likely outcome of ongoing claims including expected settlement dates Value of claims settled and final outcomes Relevant trends Information regarding remedial action as appropriate 23.5 In the interim, the Executive Director responsible for claims will ensure that the Board is kept informed of any significant and major developments through the preparation of a Briefing Note where applicable by the Claims Manager The Claims Manager will provide a quarterly report on the management and status of claims to the Quality & Safety Leads and Finance Department which will include the quantum valuations of any claims managed in-house and also those managed by L&RS The Claims Manager will provide such ad-hoc reports as required by the Division or Department of the Trust upon request. External Reporting Procedures 23.7 Welsh Government The Claims Manager will ensure that any claims with damages estimated to exceed the Trust s delegated authority of 1 million are reported to the Welsh Government and that prior approval be obtained in advance of liability being conceded and/or the claims being settled In addition, the Claims Manager will monitor the nature and type of claims received to ensure that any claims which are novel, contentious or repercussive are reported in advance of settlement to the Welsh Government and any required approvals are obtained at relevant stages. These may include claims, involving unusual and/or new features which if not correctly handled might set an unfortunate precedent for other NHS litigation or which appears to represent test cases for potential claims actions or cases which although not formally part of a class action appear to be very similar in kind to concurrent claims against other NHS bodies. In such cases, the Claims Manager will contact the Welsh Government for advice regarding management Welsh Risk Pool In addition, to the WRP Reimbursement Procedure, the Trust is required to notify the WRP as follows: WRP2 during the course of the conduct of a claim when it becomes apparent that the value of the claims is likely to exceed 25,000, applicable when a case is not managed by L&RS. Ref: Black 8b Page 22 of 34

23 Appendix U on the conclusion of any successful compensation claim below 25, NPSA Where a claim, with an incident date post-dating 1 st January 2004, has been identified as a patient safety incident but was not previously reported through the incident reporting process, the Claims Manager will notified the relevant risk lead or person with responsibility for risk management to ensure that a report is sent to the National Patient Safety Agency (NPSA) via the National Reporting and Learning System (NRLS) retrospectively Claims Review Procedure 24.1 The Welsh Risk Pool (WRP) is required to identify a minimum number of 30 claims for reimbursement made on the WRP for review within a financial year. The purpose of the review is to consider the manner in which the incident, complaint and subsequent claims was handled by the Trust, whether lessons were learned and practices made safer with the primary purpose being to identify good practice in the management of incidents, complaints and claims for the benefit of all NHS organisations. The review may take the format of either a: Follow up Review: a follow up recommendation is made when there are particular issues around implementation of remedial action that the Advisory Board wishes to be clarified. The follow up will consider the action taken by the Trust in respect of the outstanding item. It may as a consequence focus upon the remedial action and monitoring set out in sections 14 and 15 of the Annex B Checklist but which was not formally in place at the time of the submission of the claims to the WRP Claims Review: this review has a significantly wider scope than the follow up process. The Advisory Board having considered the claim have formed the view that there are aspects of the claims that would benefit from further review. It is likely to involve a detailed review of the circumstances and background to the claims with an analysis of remedial action and monitoring defined within sections 14 and 15 of the Annex B Checklist. In addition it may be used to identify good practice which can usefully be disseminated across all NHS organisations in Wales. If there are residual uncertainties that prevent a recommendation to approve the claim being made, a review can then be taken in respect of the aspect of the claims giving rise to any queries The Initial Arrangements: Where the WRP wishes to undertake a claims review, the Trust will receive a letter addressed to the Chief Executive and copied to the Claims Manager. The letter will contain: Ref: Black 8b Page 23 of 34

24 A request for information and documentation pertinent to that previously contained within the Annex B at the time of the original submission of the claim It will indicate whether the request is for a Follow Up Review or a Claims Review It will identify whether the WRP Assessor is intending to undertake a site visit or a remote review The Trust will acknowledge receipt of the request within 14 days advising the WRP Assessor who will be the nominated point of contact for the effective operation of the review. This may include the provision of direct contact details for relevant members of staff who need to be involved in the review The Claims Manager or nominated contact will then proceed to collate or delegate responsibility for the collation of the documentation and information requested by the WRP Assessor. In the event of any difficulties retrieving or obtaining information, documentation or the co-operation of members of staff, the Claims Manager will involve the Trust s escalation procedure contained herein at paragraph The documentation and information requested should be forwarded to the WRP Assessor within 1 calendar month of the date of the request. Where this cannot be achieved, the Claims Manager will contact the WRP Assessor to agree a timescale for the provision of the information and documentation The WRP Assessor will contact the Claims Manager or nominated contact to arrange a mutually convenient date and identify any staff who will be interviewed During the Site Visit: In preparation for a site visit, the Claims Manager or nominated contact should: Organise a location suitable for the Assessor and any interviewees for the conduct of the review which should include a plug point for laptops Liaise with and arrange to escort the Assessor on arrival Ensure all and any documentation required that has been previously communicated is available. This may include the claims file, patient records, policies, procedures/care pathways, and or audit Ensure that all required interviewees are available for the period of the claims review and can be contacted and released for interview. The Claims Manager should be available to co-ordinate information provision and interviewees. Ref: Black 8b Page 24 of 34