BOARD MEETING DATE OF MEETING: 29 NOV2017 CLINICAL NEGLIGENCE PAYMENT. Director of Finance & IT. Executive Committee Audit and Assurance Committee

Transcription

1 AGENDA ITEM: 4.2 BOARD MEETING DATE OF MEETING: 29 NOV2017 Subject : Approved and Presented by: Prepared by: Other Committees and meetings considered at: Considered by Executive Team on: CLINICAL NEGLIGENCE PAYMENT Director of Finance & IT Head of Financial Services Executive Committee Audit and Assurance Committee 25 October 2017 PURPOSE: The purpose of this paper is to provide the Board with a briefing regarding a significant payment of 8,400, that has been made in respect of a Clinical Negligence case originally concluded in Approval/ Ratification/Decision Discussion Information THE PAPER IS ALIGNED TO THE DELIVERY OF THE FOLLOWING STRATEGIC OBJECTIVE(S) AND HEALTH AND CARE STANDARD(S): Strategic Objectives: Health and Care Standards: Deliver continuous improvement in safety, quality & patient & carer experience in all settings Safe Care and Effective Care

2 EXECUTIVE SUMMARY: The Board will wish to be aware that the Welsh Government has approved the payment of 8,400, in respect of a Clinical Negligence case originally concluded in In line with the health board s Scheme of Reservation and Delegation of Powers the payment was ratified by the Audit and Assurance Committee when it met on 7 November The payment has been made to the claimant and all costs are being reclaimed from the Welsh Risk Pool (WRP). Detailed Background And Assessment This Clinical Negligence case and related claim was settled by PTHB in It relates to a baby who suffered an intracranial bleed and long term disability. In terms of learning from this claim, the health board introduced version control procedure in relation to the publication of new guidance leaflets. Further, at the time of this incident, there was no midwife responsible for clinical governance. The Lead Midwife for Clinical Governance ensures that all staff are notified regarding the use of leaflets and version control. The claim was managed by the Welsh Risk Pool (WRP) on behalf of PTHB under a Service Level Agreement (SLA) between PTHB and WRP in operation at that time. The claim was settled in 2010 at an amount of 6.289M following advice from Counsel who advised on the balance of probabilities, that while the court would not be critical of the midwifes the health board had been in breach of duty for failing to provide her with an updated guidance leaflet relevant to her care and treatment. There has been a recent change to the discount rate applied to Personal Injury/Clinical Negligence cases which took effect in March The proposed review to the rate was announced in 2010 but was not finalised until At the time, it was anticipated that the review would take months as oppose to years to conclude and therefore in 2010 many Claimants included particular wording in settlement orders to ensure that should the discount rate change the Claimant would not be disadvantaged by agreeing to settle claims before the Lord Chancellor reached a decision on the matter. This was encouraged by the courts to avoid unnecessary delay in the settlement of claims pending the completion of the review. WRP have provided the following to explain this change: In 2010 the Lord Chancellor s department announced there would be a review of the discount rate applied to the sums in some heads of damage in compensation claims which related to amounts which would be incurred

3 in further years. The discount rate had been set at 2.5% by the House of Lords in This was predicated on the Claimant being cautious in his investments for the future and was based on the rate for Government back gilt investments. The Government had been lobbied over the years for this rate to be reviewed particularly in light of the very low interest rates which had become the norm. It was not known when the review would be finalised nor what the outcome would be. Accordingly a solution was found to the uncertainty in early 2011 which involved the addition of a specific clause to be put into the final order on settlement of the claim for the Court to approve. The terms of the Order as approved by the Judge are binding. Departure from any of the clauses would give the Claimant a right of remedy. This would involve an application to the Court which would not only impose the clause already approved but would lead to an order of costs against the defendant who had failed to comply. On Monday 27 th February the Lord Chancellor, Liz Truss, announced a change in the Personal Injury Discount Rate from 2.5% to minus 0.75%. The new rate came into effect from 20 th March The discount rate adjusts personal injury compensation payouts to take into account how much an individual can expect if they invest a lump sum over their lifetime. We have taken advice and the announcement of the Lord Chancellor in February 2017 did relate to the review announced in As a result of this change to the discount rate introduced in March 2017, a number of Claimant solicitors have been assessing old settlements. There are currently 9 cases identified within Wales with the specific wording set out above, of which the PTHB case is one. This payment will neither impact upon Powys THB nor NHS Wales. The Lord Chancellor has stated that the already stretched NHS budgets would not be affected by this change and that additional funding will be found. The WRP have assessed the impact of the discount rate change and the agreed settlement has been recalculated whereby they have now advised PTHB that a further 8,400,900 needs to be paid in respect of this claim. Prior to agreeing settlement, the WRP obtained legal advice from a QC on whether the health board can be bound by the wording set out in the 2010 order. The QC advised that there is not a compelling argument to dispute this since Lord Chancellor is clear that the review in 2010 relates to the change introduced in There is the option of seeking a court order to have the entire claim reassessed, however based on the method of calculation used by the Claimant in 2010 and potential increase in the Claimant s life expectancy,

4 it is possible that requesting the court to reassess the settlement may result in a higher level of damages to be paid and was therefore not advised. Following consideration by the Executive Team and in line with internal governance arrangements for Losses and Special Payments, this payment has been ratified by the Audit and Assurance Committee at its 7 November 2017 meeting. A table of limits extracted from the Scheme of Reservation And Delegation of Powers Jan 2017 is below: Ratify payment for clinical negligence and personal injury claims where legal advice has been obtained and guidance applied (negotiated settlements) < 1m (including plaintiffs' costs) > 1m Audit and Assurance Committee Director of nursing Welsh Government The Welsh Risk Pool has submitted the case to Welsh Government for approval, and to secure the funds to make the payment to the Claimant as this payment exceeds 1M. Approval was granted by Welsh Government on 10 November PTHB has made the payment to the claimant on 15 November Powys THB has submitted a reimbursement request to the Welsh Risk Pool for consideration at its 21 November 2017 meeting. It is anticipated following approval at this meeting a payment will be made to PTHB to reimburse the amount paid out by the end of November 2017.PTHB has already accounted for its 25k relating to this claim in the original settlement in There are no additional costs to be borne by PTHB in regard to this amended settlement. Once reimbursement from the WRP is received the cash received to make the payment will be returned to the Welsh Government. As part of the reimbursement process the lessons learned from the initial claim will be reviewed to ensure that the procedures for version control of leaflets remains robust. Due to the significant amount involved, this payment is reported to the PTHB Board at its November 2017 meeting for information. RECOMMENDATION(S): It is recommended that the Board NOTES the significant payment of 8.401M made in respect of a Clinical Negligence case originally concluded in 2010 as a result of the change in Discount Rate that came into effect in March NEXT STEPS:

5 This payment will be recorded in the Losses and Special Payments section of the health board s Annual Accounts for 2017/18. Impact Assessments Equality Act 2010: Quality and Safety: Welsh Language (Wales) Measure 2011: Financial Implications: Legal Implications: Well-being of Future Generations (Wales)Act 2015: Clinical Negligence and Lessons Learnt This will be reimbursed from Welsh Risk Pool Legal advice has been sought in respect of this case via Welsh Risk Pool Services