Claims Handling procedure by cmb14063


									            CLAIMS HANDLING

              • EMPLOYER LIABILITY
               • PUBLIC LIABILITY

                  April 2009

             Review:     April 2010

This procedure should be read in conjunction with
Bolton Primary Care Trust’s Claims Handling Policy
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                                 BOLTON PRIMARY CARE TRUST

                                    DOCUMENT CONTROL

                  Doc. Ref. No.         CLD003B

            Title of document           Claims Handling Procedure

            Author’s name               Diane Sankey

            Author’s job title          Complaints & Litigation Manager

            Dept / Service              Primary Care Development/Complaints

            Doc. Status                 Final
                                        National Health Service Litigation Authority
            Based on                    Reporting Guidelines
                                        NHS Clinical Negligence Scheme 1996
            Approved by                 PCT Board

            Publication Date            22 April 2009

            Next review date            April 2010

            Distribution                Trust Wide
            Has an Equality and
            Diversity Impact
            Assessment been


        Version                Date                       Consultation
         V2.0                11/04/07           Policy approved by PCT Board
                             17/04/07           Policy approved by Risk Management
          V3.0               09/04/08           Policy approved by PCT Board
          V4.0               22/04/09           Policy approved by PCT Board

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1.0       Introduction

Bolton Primary Care Trust is fully committed to providing high quality, appropriate and accessible
healthcare to the people of Bolton. The PCT will ensure effective and timely investigation and
response to any claim that includes allegations of clinical negligence or personal injury and/or
employer/occupier liability.

This procedure should be read in conjunction with Bolton Primary Care Trust’s

      •   Claims Handling Policy April 2008
      •   Accident/Incident Reporting Policy
      •   Complaints Policy and Procedure September 2007
      •   Risk Management Strategy and Policy March 2008
      •   Being Open Policy March 2008

2.0       Step by step guide to the management of claims

Clinical Negligence Claims                                                Page

2.1       Identifying a claim                                              5
2.2       Dealing with a request for health records              6
2.3       Undertaking a preliminary analysis                               6
2.4       Reporting potential claims to the NHSLA                          7
2.5       The duties of discovery                                          8
2.6       Identifying the responsible Trust                                8
2.7       Establishing financial responsibility for the claim              8
2.8       Acknowledging a new letter of claim                              8
2.9       Responding to a request from a solicitor to examine the          9
2.10      Entering the claim onto the claims database                      9
2.11      Reporting to the NHSLA                                           9
2.12      Investigating the claim                                          9
2.13      Root cause analysis                                             10
2.14      Tracking down staff who longer work for the Trust               10
2.15      Taking statements                                               10
2.16      Obtaining an `in house’ expert opinion                          11
2.17      The next step                                                   11
2.18      Valuing the claim/assessing quantum                             12
2.19      Compensation recovery unit                                      12
2.20      Negotiating with the claimant/representative (mediation)        12
2.21      Working with Trust legal advisors                               12
2.22      Claimant’s Part 36 offers                                       13
2.23      Statement of Truth                                              13
2.24      Maintaining proper review of claims                             13
2.25      Communication                                                   13
2.26      Communication with the Board/PCT Sub Committees                 14
2.27      Involving external agencies                                     14
2.28      External communications                                         15
2.29      Remedial action                                                 15

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Employer/Public Liability and Property Expenses Claims                Page

3.1    Acknowledging the letter                                        16
3.2    Liabilities to Third Parties Scheme – Incident Report Form      16
3.3    Property Expenses Scheme Report Form                            16
3.4    Investigating the claim                                         16
3.5    Health and safety executive report (RIDDOR)                     16
3.6    Supporting evidence                                             17
3.7    External investigator                                           17

Existing Liabilities Scheme (on behalf of NHS North West, former Strategic Health Authority)

4.1    Existing Liabilities Scheme                                     17
4.2    Statement of Truth                                              17


A      Pre-Action Protocol for The Resolution of Clinical Disputes    18

B      Claiming privilege from discovery                              20

C      Obtaining a view of the claim from the lead clinician          21

D      Assessing the quantum of damages                               22

E      The DWP Compensation Recovery Scheme                           25

F      Report Forms
         • CNST Claim Report Form                                     26
         • LTPS Scheme Claim Report Form                              26a
         • PES Scheme Claim report Form                               26b

G      Summary Flow Chart - Handling Claims                           27

H      Root Cause Analysis - Appendix 5 of the PCT’s Accident
       & Incident Reporting Policy

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2     Clinical Negligence Claims

2.1    Identifying a claim

A claim is defined as:

Any demand, however made, but usually by the patient’s legal advisor, for monetary
compensation in respect of an adverse clinical incident leading to a personal injury.

The claim will usually, but not always, arrive in the form of a letter from a Solicitor on
behalf of a patient, his/her representative or estate (referred to as the “Letter of Claim”
(LC) (see Appendix A). It should be noted that if the claim is received in the format of a
LC the Trust only has three months in which to respond. Details of the alleged
negligence and the injury it is claimed that the patient has suffered should be provided but
often are not or are very brief. The letter may also ask for an early admission of liability.

Other sources of a claim might be the following:

(1)    a letter from a patient directly or from his/her next of kin or appointed
       representative (for example, where the patient has died, a child or is a person with
       learning disabilities);
(2)    a complaint through the NHS Complaints Procedure which also includes a request
       for compensation (note: NHSLA authorisation is required before admissions may
       be made and monetary compensation may be offered. In the absence of such
       authorisation, the NHSLA will not reimburse the Trust either for the compensation
       awarded, or for any of the costs generated. Such payments, if made by the Trust
       will fall outside the CNST - Clinical Negligence Scheme for Trusts - and could
       possibly result in criticism from auditors);
(3)    a coroner’s inquest where the standard of care in the Trust is criticised, especially
       where the relatives of the deceased patient have instructed lawyers for the
(4)    a request for health records
(5)    a Writ (for High Court actions) or Summons and Particulars of Claim (County

Note: The Complaints & Litigation Department will be informed promptly of any
incident/development/complaint etc., from whatever source, which suggests that legal
action may result.

2.2    Dealing with a request for health records

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All requests for disclosure of the health records are to be forwarded for processing to: -
Complaints & Litigation Department
Bolton Primary Care Trust
St Peters House
Silverwell Street

Records are usually disclosed under the Data Protection Act 1998, unless the patient is
deceased whereby they will be disclosed under the Access to Health Records Act 1990
unless they were deceased prior to 1/11/91 thereby the records will be disclosed under
the Supreme Court Act.

Records should be disclosed within 40 days.

A health professional will be asked to view the records prior to their release. The health
professional will advise the Complaints & Litigation Department if the record contains
information, which might possibly cause the applicant to commence a claim against the

The Complaints & Litigation Manager or Officer must be notified, if a request has been
submitted on the `pre-action protocol’ for when proceedings are contemplated (See
Appendix A).

If a `disclaimer’ is not included within the request for health records, this will be sought
and if not obtained, the request will be recorded as a `potential claim’.

2.3 Undertaking a preliminary analysis

Once notified of a serious incident/complaint/request for records, the Complaints &
Litigation Manager or Officer should consider whether there is a significant risk of litigation
and liaise with the Risk Manager and appropriate Service Manager.

If it is felt that there is a significant risk of litigation, a preliminary analysis must be
undertaken. This will usually be where there has been a serious/untoward incident, and
paperwork should already have been completed and investigations undertaken by
directorate management.

The preliminary analysis should normally be completed by the Complaints & Litigation
Officer within 40 days of receipt of the request for disclosure of records, although priority
must be given to disclosure of the records.

Any incident forms/copies of complaints files etc. should be obtained, and comments
sought from the lead health professional involved.

When seeking the comments of the health professional ask for:

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♦ Synopsis and chronology – brief outline of main events including details of the main
  parties involved
♦ Care Management problems – all events where care deviated beyond acceptable
♦ Breach of duty – record those case management problems leading to harm, and make
  a direct response to specific allegations made
♦ Causation – harm that has directly led to loss of amenity pain and suffering. This may
  be difficult to determine in many cases without further investigation.

Also see Appendix B and Appendix C for obtaining views of lead clinicians.

The Complaints & Litigation Officer should also establish:

♦ Quantum – this should be estimated on the basis of information known at the time,
  using the Judicial Studies Board Guidelines supplemented by advice from the NHSLA.
  It should represent a best guess of the probable cost to the defendant at the time of
  resolution of the case and should incorporate figures for both claimant and defence
  legal costs. (See Appendix D)
♦ Claimants funding – establish whether a Conditional Fee Agreement (`no win no fee’)
  is in place. Claimants entering into this agreement, in the event of recovering
  damages, will also be able to recover their reasonable insurance premium for the
  agreement from the defendant, and their solicitors will be entitled to a success fee,
  also payable by the defendant, of up to a maximum of 100% above their standard
  charge. Note: Pre-action, there is no obligation on claimants to reveal the existence
  of an agreement, but the defendant should enquire. The claimant must however
  disclose that an agreement exists upon service of proceedings.

2.4 Reporting potential claims to the NHSLA

The NHSLA must be informed of all incidents/requests for health records/complaints etc.
when a significant risk of litigation has been established.

The NHSLA should be notified within two months of a request for records or sooner if the
event is serious.

The preliminary analysis should be forward to the NHSLA along with copies of all relevant

Request NHSLA to advise of any further action required.

2.5    The duties of discovery

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Once litigation has been commenced (after Court proceedings have been issued and the
pleadings stage has been completed), the Trust is under a duty to provide discovery of all
documents relevant to the claim.

The obligation is a continuing one, so that if, for example, additional records turn up
during the life of a claim which were for whatever reason unavailable at the outset, they
should be disclosed to the claimant, subject to any objection taken on the grounds of
relevance and/or privilege (see Appendix B).

The Complaints & Litigation Manager or Officer will therefore take stock of the information
available in connection with a claim at the earliest possible opportunity, ensuring that
every effort is made to obtain all records and protect relevant documents from being

2.6 Identifying the responsible Trust

Using information contained in a Letter of Claim, the Complaints & Litigation Officer will
confirm that the patient is or was a patient of Bolton PCT at the relevant time:

Always be alert to the possibility that the patient was not in fact being treated by the Trust
when the negligence is said to have occurred, e.g. because he/she was the recipient of
services provided on site by a neighbouring Trust. In this situation the patient or his/her
representative should be asked for further information about the circumstances of the
treatment and/or the LC/claim notification should be sent on to the appropriate Trust (after
informing the claimant/claimant’s representative that this is planned).

2.7    Establishing financial responsibility for the claim

The date of the incident/treatment complained of will determine which NHS body will take
financial responsibility for the claim and liaison with other NHS Providers/Primary Care

2.8    Acknowledging a new letter of claim

The letter of claim must be acknowledged to the solicitors within 14 days of receipt of
letter. The NHSLA must be quoted as the Trust claims handling agency (insurers) who
will be handling the case. The standard NHSLA claim report form must also be
completed (please see Appendix F).

The letter of claim indicates that the formal legal process has commenced and there will
be three months to respond formally, provided that the letter is Protocol –compliant (Woolf
reforms). There should not be any indication that the letter is considered Protocol
compliant, thereby enabling the NHSLA or panel solicitors to seek further time if need be.

Undertake preliminary analysis as in 2.3 (if not already undertaken)

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Notify relevant Senior Manager/Director of Service Provision, Risk Manager and the
Director of Resource Allocation.

2.9      Responding to a request from a solicitor to examine the records

If a claimant’s solicitor wishes to view the original records, arrangements should be made
by the Complaints & Litigation Officer. Note:

(1)      the visit must be supervised to ensure that no original documents are removed or
(2)      facilities for copying should be made available at such an appointment.
         Alternatively, it may be more convenient to arrange for the visiting solicitor to flag
         any additional documents required with the PCT agreeing to copy and send them
         out within a few working days.

2.10     Entering the claim onto the claims database

As soon as notification of a claim has been received enter information on to the
Safeguard database.

2.11     Reporting to the NHSLA

All claims must be reported to the NHSLA. The NHSLA must be kept fully informed of all
developments during the life of a claim.

2.12     Investigating the Claim

To assist the NHSLA in determining how a claim should be responded to, the Complaints
& Litigation Manager or Officer must adhere to the following process:

♦     Report claim to NHSLA within 24 hours (Claim Report Form – Appendix F)
♦     Enter new claim onto database
♦     Acknowledge letter of claim within 14 days (21 days for RPST claims)
♦     Advise appropriate Senior Manager/Assistant Director of new claim (send copy of
      letter of claim)
♦     Advise Risk Manager of new claim
♦     Advise Director of Resource Allocation of new claim
♦     Undertake preliminary analysis if not already done so (forward to NHSLA)
♦     Obtain and be familiar with the records and any relevant policies and protocols in
      operation at the time of the alleged incident (copy to NHSLA)
♦     Obtain relevant incident reports, risk assessments, root cause analysis, post incident
      reviews etc. (copy to NHSLA)
♦     Contact members of staff involved (via line manager) and find out their version of what
      may or may not have happened (have a record of contact telephone numbers etc)

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♦ Arrange for relevant members of staff/managers to meet with solicitors appointed by
  NHSLA (Complaints & Litigation Manager or Officer may be present at meeting)
♦ Forward any relevant documentation discovered during life of claim to NHSLA
♦ Advise relevant members of staff, relevant Senior Manager/Assistant Director,
  Resource Allocation Department and Risk Manager of NHSLA decision re: liability
♦ Enter outcome onto database
♦ The NHSLA will advise of outcome and breakdown of cost
♦ Quarterly reports of all claims will be received from the NHSLA and all panel approved
  solicitors. Reports will be checked for authenticity.

2.13 Root Cause Analysis

Incidents may have had a root cause analysis prepared at the time of the incident if
appropriate. The notification of a claim will not generate a root cause analysis. If a root
cause analysis has not been undertaken at the time of the incident e.g. incident not
reported, the Complaints & Litigation Officer will liaise with the Risk Manager to discuss,
who would be the most appropriate person to undertake one if appropriate.

The PCT’s Accident/Incident Reporting Policy outlines a detailed process for carrying out
root cause analysis and contains examples of useful templates that can be used during

2.14   Tracking down staff who no longer work for the Trust

Every effort should be made to track down all key staff in respect of each case. If any
have left, contact the Human Resources Department and/or staffing agencies used by the
Trust to find out where they have moved to.

Where local information networks fail, try:

(1)    The GMC (providing details of the staff member’s registration number)
(2)    the Nursing & Midwifery Council
(3)    the medical defence organisations

2.15   Taking statements

After reviewing the records and receiving a preliminary report from the Healthcare
Professional responsible for the patient, the Complaints & Litigation Manager or Officer
should have a reasonable idea as to the members of staff involved in the treatment or
care, which is alleged to have been substandard.

The panel solicitors appointed by the NHSLA may contact the Trust to request an
interview with staff and appropriate line managers. The Complaints & Litigation
Manager/Officer may accompany the solicitor and remain present during the interview.
The Complaints & Litigation Manager/Officer will take the opportunity to note any Risk
Management issues which may arise during the interview. These can then be forwarded
on to Risk Management for consideration.

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The solicitor will prepare a statement and forward this on to the member of staff for
approval and signature at a later date.

Statements should not be stored with the patient’s records but kept in a separate file
maintained by the Complaints & Litigation Department. Statements must be forwarded to
the NHSLA, or approved panel solicitors.

2.16 Obtaining an “in house” expert opinion

Where a claim is complex and/or seems to have some merit and especially where the
preliminary opinion of the lead clinician is equivocal or fails adequately to deal with
relevant issues (e.g. causation) it may be useful to seek a view from another
consultant/lead professional within the Trust. This person should be someone who is not
directly involved in the case who has sufficient clinical experience to offer an “expert”
assessment of its strengths and weaknesses.

The NHSLA/panel solicitors will provide detailed instructions as to what the “expert” is
required to consider.

2.17   The next step

Once the NHSLA is in a position to take a view on liability there are a number of options
to consider. The NHSLA will advise on the proposed course of action:

(1)    Make an admission of liability and invite the claimant to provide further details of
       his/her alleged injuries and any financial losses, with proof of the amounts where

(2)    Offer to settle with NO admission of liability.

(3)    Deny liability and provide the claimant/claimant’s solicitor with a copy of a report
       obtained from the appropriate consultant/lead professional setting out the pertinent
       clinical facts of the alleged incident and his/her reasoned opinion as to why there is
       no evidence of negligence. Invite them to drop the claim. Note: This is only
       appropriate where there are good grounds for believing that the claim is
       misconceived and/or without merit. An optimistic preliminary report from the
       relevant consultant will not always justify such a step and care must be exercised
       to see that all aspects of the claim have been reviewed thoroughly first.

(4)    Seek an early opinion from an independent expert outside the Trust. Note: The
       NHSLA/panel solicitors will instruct independent experts

(5)    Take no further action             pending        further   communication      from   the
       claimant/claimant’s solicitor.

NB     Make sure the file is reviewed regularly and if nothing further is

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        heard from the claimant/claimant’s solicitor within a reasonable period, consider
       writing to check whether the claim is still being pursued. Where the limitation
       period is shortly to expire, take care not to alert the claimant or his/her solicitor to
       the point by making contact close to the relevant date.

2.18   Valuing the claim/assessing quantum

It is helpful to the NHSLA if the PCT assesses the quantum of the claim. This will include
both the defence and claimants costs. The Judicial Studies Board Guidelines will be used
for this purpose. The NHSLA will also provide guidance by telephone if necessary.

Appendix D provides a basic guide to the task of assessing quantum.

2.19 Compensation Recovery Unit (CRU)

For claims in respect of incidents on or after 1 January 1989, where the claimant has
received social security benefits as a result of the injuries he/she has sustained, the
Department of Work and Pensions will claim them back from any damages that are

The task of reporting cases to the CRU and obtaining certificates will be undertaken by
the NHSLA.

The NHSLA will need details of National Insurance numbers for all claimants to assist in
this process.  See Appendix E for further details on the Compensation Recovery

2.20 Negotiating with the claimant/representative (Mediation)

Mediation involves a trained mediator acting as go-between to facilitate settlement.      This
would only be undertaken at the instruction of the NHSLA.

2.21   Working with Trust legal advisors

With all claims, the Complaints & Litigation Officer must inform the NHSLA immediately.
The NHSLA may instruct a panel solicitor.

Overall control of the management of the claim should remain with Bolton Primary Care
Trust as the PCT remains the legal defendant (except in the case of the Existing
Liabilities Scheme where cases are handled by Bolton PCT on behalf of the Greater
Manchester Strategic Health Authority).

The PCT will provide the panel solicitors with clear instructions, which set out the level of
support/involvement that is required and ensures that the solicitor gives clear and regular
feedback on the work that is being done on behalf of the Trust.

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If Bolton Primary Care Trust wishes to take legal advice at the pre-action stage, the cost
of the advice will not be reimbursed by the NHSLA. If the potential use of panel solicitors
(usually Hempson’s of Manchester) is discussed with the NHSLA in advance, the NHSLA
might agree that such costs will form part of the claim, provided that there is a real
likelihood of a claim actually arising.

2.22 Claimant’s Part 36 Offers

A Part 36 offer (Woolf reforms) is where the claimant states a figure at which they are
prepared to settle the claim. It is possible that these may be made at an early stage,
even where the first notification is a letter of claim. In all cases they should be supported
by a medical report and a schedule of losses.

All such offers, must be reported the NHSLA immediately, and the PCT should not give
any indication to the claimant that any such offer is valid.

2.23   Statement of Truth

If a Statement of Truth is received from the panel solicitors, it will need to be signed by
one of the authorised signatories, who are; Chief Executive, Director of Resource
Allocation, Complaints & Litigation Manager and Complaints & Litigation Officer.

2.24 Maintaining proper review of claims

There must be an efficient system for reviewing all claims files at regular intervals,

(1)    a “pending” system for active claims.         This will help with chasing information
       requested from other departments.

(2)    A periodic review of each active file, with a check on the value of the claim and the
       anticipated timing of any expenditure required:

(3)    A time frame for archiving inactive claims.

2.25   Communication

Good channels of communication are essential throughout the live of a claim.

All staff who are directly involved in an allegation of negligence must be kept informed of
the claim’s progress.

Members of staff involved in a claim should be encouraged to contact the Complaints &
Litigation Department for information, advice and support at any time. Lead clinicians
should be consulted on the choice of experts. Expert reports should be shared with the

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Line Managers and the appropriate Assistant Director should be informed when a new
claim is received and when a claim reaches conclusion.

The Risk Manager should be informed of potential claims, new claims, risks hi-lighted
during life of claim and outcome of claim.

The Resource Allocation Department should be informed of new claims and the outcome
of claims.

2.26 Communication with the Board/PCT Sub Committees

Reports on the progress of claims (including expected settlement dates and actual
outcomes) will be provided to the Risk Management Committee, and the Safety & Clinical
Committee at regular intervals. Claims for clinical negligence processed under the CNST
scheme will be reported to the Clinical Governance Committee. The minutes of each sub
committee will be reported to the Board.

2.27    Involving external agencies

In the event of claim arising from a serious incident, there may have been the need to
involve external agencies. This should not be done as a result of the claim but at the
time of the incident. During the investigation of the claim, it may become clear that
external agencies have not been involved, which should have been. These may include:

♦ Sudden or unexpected deaths should be notified to Her Majesty’s Coroner by the
  doctor who certifies the patient’s death
♦ Where there is suspicion of gross professional misconduct then the General Medical
  Council or Nursing & Midwifery Council may need to be informed
♦ Incidents involving medical devices or consumable products should be notified to the
  Medical Devices Agency
♦ Incidents involving Estate Services or equipment should be notified to NHS Estates by
  the nominated Estates Officer
♦ Incidents of food poisoning should be notified to:
      The Local Authority Department of Environmental Health
      Infection Control

Please see Bolton PCT’s Accident/Incident Reporting Policy for further information.

The Complaints & Litigation Manager or Officer will consult with the Risk Manager,
Director of Clinical Governance, Director of Resource Allocation or other executive
Director to obtain authority for involvement of external agencies.

2.28 External Communications

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Appropriate communication with the NHSLA throughout the life of the claim must be
maintained using the appropriate forms. The standard NHSLA claim report and claim
outcome forms should be submitted to the NHSLA at the beginning and conclusion of the

Close liaison should also be maintained with acute Trusts/primary care practitioners
and/or the Strategic Health Authority and any issues, which affect these organisations,
should be brought to their immediate attention.

2.29 Remedial Action

To reduce the potential for claims, good liaison with risk, clinical governance, complaints
managers and clinical audit staff is essential. Educating clinical staff about obvious
litigation risks should be a high priority.

Whenever a claim has been lost or has to be settled, steps should be taken to review the
lessons learnt with the staff involved and any others whose conduct might be criticised in
a similar fashion in the future. Anonymised information will be provided to the Risk
Management Committee for consideration/action and shared with the PCT’s Learning

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3. Employer/Public Liability and Property Expenses Scheme Claims

The process of administration for employer/public liability and property expenses scheme
claims is very similar to the process used for clinical negligence claims. Employer liability
refers to a claim made by an existing or present employee of the Trust. Public liability
refers to a claim made by a patient or a member of the public which does not fall into the
clinical negligence category e.g. slipping on a wet floor. Property expenses refers to
damage to Trust property.

The process for handling Clinical Negligence claims will be followed with the following

3.1    Acknowledging the letter

The letter of claim must be acknowledged to the solicitors within 21 days of date of letter
of claim.

3.2    Liabilities to Third Parties Scheme – Incident Report Form

For employer and public liability claims a Liabilities Incident Report Form must be
completed and forwarded to the NHSLA (see Appendix F, the forms are available to
download from the documents section of the website

Note: The excess for employer liability is £10,000 and £3,000 for public liability. The
      Trust therefore is liable to pay the first £10,000 or £3,000 on any successful claim.

3.3    Property Expenses Scheme Report Form

For damage or theft of property, a Property Expenses Scheme Report Form must be
completed and forwarded to the NHSLA (see Appendix F)

Note: The excess for property expenses scheme is £20,000. Buildings - £20,000,
Contents - £10,000 and Plant/Machinery £10,000. The Trust is liable to pay these
amounts on any successful claim.

3.4    Investigating the claim

The process of investigating the claim and liaising with the NHSLA is identical to the
process for Clinical Negligence. The relevant documentation is more likely to be incident
reports for example.

3.5    Health and Safety Executive Report (RIDDOR)

The Trust has a legal duty to inform the Health and Safety Executive if someone has
been off sick for 4 days or more, or had a significant injury e.g. fracture, has been
hospitalised for 24 hours or more or has an industrial disease. (Local offices in telephone

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directory). The Risk Management Department will provide copies of all documentation.
See the PCT’s Accident/Incident Reporting Policy for further confirmation.

3.6    Supporting Evidence

Copies of risk assessments or any documentation, which may prove that Bolton PCT was
endeavouring to make things safe, must be copied and submitted to the NHSLA. (This is
defence for the PCT).

Photographs may need to be taken e.g. hole in ground before any remedial work is

Note: Remedial work should be undertaken to reduce further risk.

3.7    External Investigator

The NHSLA will arrange for their investigator to visit the site and meet the people involved
in the incident. The Complaints & Litigation Officer/Manager or the Risk Manager may
accompany the investigator and attend interviews.

The investigator will submit a report to the NHSLA and will suggest a likely figure for
payment. The investigator may however, suggest that there is no negligence.

4. Existing Liabilities Scheme

The NHS Litigation Authority manages the Existing Liabilities Scheme which covers
clinical incidents that occurred prior to 1 April 1995. Former Health Authorities remain
the legal defendants in such claims, NHS North West as the successor organisation has
requested Bolton Primary Care Trust to administer ELS claims relating to services
provided locally prior to 1 April 1995 and has delegated appropriate authority to the PCT.

4.1    ELS Claims & CNST Reporting Guidelines

The process for handling Clinical Negligence claims will be followed on receipt of an ELS
case but liaison will take place with the Litigation Officer, Royal Bolton Hospitals NHS

4.2    Statement of Truth/Authorised signatures

If a Statement of Truth is required by the NHSLA appointed solicitors, it will be signed by
the Chief Executive or the Board Secretary/Legal Liaison Officer of the NHS North West.

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                                                                              APPENDIX A


This protocol accompanies the Civil Procedure Rules, introduced on 26th April 1999 as
part of a package of reforms to improve the ways in which civil litigation was conducted.
Lord Woolf had identified numerous problems with the old system, including delays, high
costs, unequal access to justice and inappropriate prosecution/defence of cases.

The Civil Procedure Rules (CPR) introduced a strict regime for the conduct of civil
claims, including Clinical Negligence. The key elements are openness from an early
stage and timeliness in response to claimant’s concerns.

In the first instance, when obtaining copies of health records, the requesting party should
complete the Law Society and Department of Health approved standard form, providing
sufficient information to the healthcare provider that there has been an adverse outcome
to treatment. It should also specifically mention which records are required. A signed
form of authority for the release of the records should be provided and the copies should
be made available within forty days of the request and at a cost not exceeding those
permissible under the Data Protection Act 1998.

If, following receipt of the health records, and any relevant expert advice it is thought that
there are grounds for a claim then a Letter of Claim should be sent to the healthcare
provider as soon as practicably possible.

This letter should contain a clear summary of the facts on which the claim is based,
including the alleged adverse outcome, and the main allegations of negligence. It should
also describe the patient’s injuries, including where relevant, the present condition and
prognosis. Any financial loss incurred by the patient should also be outlined. The
claimant may make an offer to settle at this stage.

In complex cases a chronology of events is helpful, but in any event, sufficient information
should be provided to enable the healthcare provider to commence their own
investigations and place a value of the claim.

The healthcare provider should acknowledge the Letter of Claim within 14 days (21 for
EL/PL) of receipt and identify who will be dealing with the matter.

Within three months of the date of acknowledgement the healthcare provider should
provide a reasoned response stating whether or not the claim is admitted, in whole or in
part (such admissions are binding and cannot be retracted at a later date). If the claim is
denied then an alternative explanation must be given.

Any documentation referred to must be disclosed with the response.

Where the claimant has made an offer of settlement, then a response to that offer should
be made. The defendant, supported with reasoning and/or supporting medical advice can
make a counter-offer.

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Proceedings should not be issued within three months of the Letter of Claim, unless there
are limitation problems, or if a reasonable period is agreed by both parties.

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                                                             APPENDIX B


1.     The usual type of privilege claimed by the Trust is legal professional privilege,
       although occasionally public interest immunity or the privilege against self-
       incrimination may be relied upon as a ground for objecting to the release of

2.     In essence, a document is subject to legal professional privilege if the dominant
       purpose behind its creation is litigation or the seeking of legal advice.

3.     Correspondence between the Trust and its legal advisers and medical reports
       obtained to defend claims brought against it will be privileged.

4.     Although there continues to be some uncertainty about the legality of a claim of
       privilege in respect of documents created in the course of an internal Trust
       investigation into an adverse outcome (complaints correspondence and
       accident/adverse incident reporting information will NOT be regarded by the Courts
       as privileged).

5.     At the Letter Before Action stage, it is often only the records themselves that are
       sought. This is always the case where the request is made only under the Data
       Protection Act 1998. The Complaints & Litigation Officer should therefore check
       the form of the request and look carefully at the list of documents sought. Unless
       particularly specified and obviously relevant to the claim, non-clinical
       correspondence which does not form part of the medical record, such as previous
       complaints correspondence etc, can reasonably be withheld at this stage. If and
       when proceedings are issued against the Trust however, additional documentation
       will need to be disclosed.

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                                                              APPENDIX C


1.     The Complaints & Litigation Officer will provide the clinician with as much
       information about the claim as possible. Usually it will be appropriate to provide a
       copy of the Letter Before Action. It is important to provide the clinician with
       information about the injuries the patient/claimant is claiming to have suffered. If
       the lead clinician is a junior member of the team and has left the Trust, the opinion
       of the most appropriate senior clinician should be sought.

2.     The clinician will have available to them all the relevant records and
       correspondence and that he/she has had an opportunity to review them before
       comments are provided.

3.     Direct the clinician to the key allegations. Do not assume that he/she will
       immediately pick up the thrust of the claimant’s case. Above all make sure that
       he/she considers:

       a.            what may have gone wrong (breach of duty);
       b.            whether any deficiency in the care or treatment
                     provided is likely to have caused the claimant’s injury or damage

4.     Where the clinician has direct knowledge of the patient, obtain comments on the
       patient’s condition on discharge from service and any views about the likely
       prognosis. This could be important when assessing the quantum of any damages
       later on.

5.     It is often useful to provide a list of questions for the clinician to answer. This
       should ensure that a simple narrative account of the patient’s care as recorded in
       the notes is not received, which fails to tackle the allegations being made. Try to
       frame the questions in terms of the reasonableness of the treatment/care given,
       rather than inviting the clinician to say whether or not a step was negligent.

6.     Ask the clinician to identify the members of staff involved in the episodes of care
       that are criticised. He/she is much more likely to be able to do this rather than the
       Complaints & Litigation Officer when considering illegible signatures in the notes.

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                                                                                APPENDIX D

                          ASSESSING THE QUANTUM OF DAMAGES

1.        An award of damages is intended to put the injured party in the position he/she
          would have been in had the negligence not occurred, in so far as that is possible
          by the payment of money.

2.        Compensation will be made up of 3 components:

          a.             General damages
          b.             Special damages
          c.             Interest

3.        General damages are awarded for what are termed “non-pecuniary losses”,
          where, because no actual amount of money has been spent or lost as a result of
          the injury, the Courts must estimate what is due in compensation, which they do by
          reference to special rules and conventions.

4.        The main aspect of general damages with which the Trust will be concerned will be
          the award for pain and suffering and loss of amenity. The second part of this
          refers to any reduction in the claimant’s enjoyment of life as a result of the
          negligence alleged (e.g. because he/she is no longer able to work, drive a car, play
          golf etc.)

5.        Such damages are assessed by reference to case law. This means that
          compensation is worked out by comparing the position of the claimant to that of
          claimants in previously reported cases, and deciding whether he/she is entitled to
          more or less money after considering whether his/her injuries are more or less
          painful and/or disabling than those of each of those claimants. It is important to
          note that where the claimant has sustained multiple injuries it is not appropriate to
          simply add up the awards that might be made for each injury separately, the
          Courts will award a global sum taking them all together.

6.        The Judicial Studies Board Guidelines for Assessment of General Damages in
          Personal Injury Cases1 gives benchmark figures for awards for different types of

          However this offers only general guidelines and in every case damages will need
          to be assessed on the basis of the particular facts.

7.        In addition to damages for pain and suffering and loss of amenity the claimant is
          likely to seek compensation for expenses of financial losses he/she has sustained
          or will sustain in the future as a result of his/her injuries. Where such losses have
          already been incurred the compensation payable is known as special damages.

    Published Blackstone Press

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       Compensation for losses, which the claimant proves he/she is likely to suffer in the
       future, will form another part of the general damages award.

8.     Expenses or losses that may be recoverable include the cost of medical treatment
       (which may be claimed on a private basis even if NHS treatment is available),
       earnings lost by the claimant and/or those caring for him/her (net of tax and NIC’s
       as these would have been paid out by the claimant in any event), any extra travel
       costs and the cost of items of equipment or services purchased to meet the
       claimant's reasonable needs as a result of the negligence. When proceedings are
       issued details of past and future loss are provided as part of the pleadings in
       schedule form.

9.     In deciding whether the claim for any item is a proper one, the questions the
       Complaints & Litigation Officer will consider are:

       a.            is the item reasonably required by the claimant by virtue of injury or
                     loss he/she has suffered as a result of the negligence?
       b.            Is the amount claimed reasonable in all the

       Claimants are under a duty to take reasonable steps to keep their claims to a
       minimum by “mitigating their damage” wherever possible.

10.    The assessment of special damages is relatively straightforward but where losses
       are claimed into the future, determining the appropriate level of damages is more
       complicated. The Courts calculate the claimant’s anticipated annual loss (at the
       date of settlement/trial), producing a figure known as the reference to the number
       of years that the item of loss is expected to continue into the future. This figure will
       be somewhat less than the actual number of years’ loss as a discount is made to
       reflect the fact that the claimant will probably invest any money awarded now and
       will receive interest on it, thus increasing the overall value of the award above that
       which would otherwise be justified by reference to the extent of his/her loss. In
       addition, a small discount is usually made to reflect the chance that for whatever
       reason, the claimant may not in fact go on to sustain the predicted loss (e.g. where
       a claim is made for loss of earnings in the future, a discount is often made to take
       account of the risk that even without the negligence the claimant might have been
       made redundant and therefore lost income.) Special calculations have been
       developed to help determine the appropriate multiplier for a claim for future loss,
       but Trusts should be aware that Claimant and defence lawyers may disagree about
       the appropriate discount rate to apply. In general, where there is any significant
       claim for future loss, seek advice on quantum from the NHSLA.

11.    Interest is payable on damages awarded in respect of losses already sustained,
       but not in respect of loss which the claimant is predicted to sustain in the future.
       Where the damages are less than £200, interest will not be paid. The power to
       award interest is found in Section 35A of the Supreme Court Act 1981 (for High
       Court claims) and Section 69 of the County Courts Act 1984 (for County Court

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12.    Interest on damages for pain and suffering and loss of amenity only becomes
       payable after proceedings have been issued. It will continue to accrue until the
       date of judgement/settlement.

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                                                                           APPENDIX E

                        THE DEPARTMENT OF WORK AND PENSION’S
                           COMPENSATION RECOVERY SCHEME

1.      For all claims the period during which benefits can be recouped from the claimant’s
        award by the DSS starts on the day following the injury and ends when
        compensation is paid or after 5 years, whichever date comes first1.

2.      Notification that a claim has been made against the Trust is made using a special
        form, known as “CRU1”. The claimant’s name, address and National Insurance
        number will be needed to fill in the form.

3.      When an offer of settlement is about to be made, a second form, known as CRU4
        must be completed to apply for a Certificate of Total Benefit.

4.      The Certificate of Total Benefit sets out the amount that must be deducted from the
        claimant’s compensation before payment is made. The claimant will also receive a
        copy of the Certificate.

5.      It is the duty of the compensator i.e. the Trust to deduct the right amount from the
        claimant’s damages award and pay it to the CRU within 14 days of settling the
        claim. If this is not done, the Trust will remain liable to the DSS.

6.      The NHSLA will perform the task of submitting and obtaining the forms.

7.      When calculating quantum, the Trust as compensator will be restricted to offsetting
        specified DSS benefits against related items of special damage (e.g.
        Unemployment Benefit/Jobseeker’s Allowance against loss of earnings).

  See the Social Security Administration Act, Sections 81 to 104. Note that slightly different rules apply in
respect of claims where it is alleged that the claimant developed a disease as a result of the negligence.

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                                                                                  APPENDIX F
 C♦N♦S♦T                 CLAIM REPORT FORM                                            CATEGORY

CNST MEMBER NAME                                                      MEMBER NO
TRUST REFERENCE                                                       TRUST CONTACT

TITLE        FORENAME(S)                                                                     SURNAME

 Gender           Date of Birth         Age at       Deceased         Date of Death                        Occupation
                                       Incident      Yes / No

        Claimant’s Solicitor Name           Solicitor’s Postcode                Claimant Name                Relationship to Patient

TITLE        FORENAME(S)                                                                     SURNAME

 Gender           Date of Birth         Age at       Deceased         Date of Death                        Occupation
                                       Incident      Yes / No

        Claimant’s Solicitor Name           Solicitor’s Postcode                Claimant Name                Relationship to Patient

                              STATUS                                    SPECIALITY                          % INVOLVEMENT

                    Hospital Name                                 Location Code            Incident Date          Notification Date

Case Speciality   Cause Code(s)       Injury Code                    Estimated Settlement Date (Financial Year or FUTR)
                                                          06/07           07/08           08/09           09/10         FUTR
Other Party(s)                                                                                                      % Involvement


Estimate of Quantum          Estimate of Claimant Costs               Share %                           Probability
£                            £                                                      MIN      LOW         MED       HIGH      CERT
Defence Solicitor            Estimate of Defence Costs             Stage of Claim + Date

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                                                                                Appendix G


                       Request for records –
                       processed as normal

                       Letter of Claim received
                       forward onto NHSLA

                      Enter details onto database
                      inform various departments

                      Trust acknowledges letter
                      within 14/21 days

                                                           3 months

Trust considers        NHSLA instruct panel
claimants choice       approved solicitors if
of experts must        appropriate. Experts
reply within 14        Instructed if appropriate
days if not in
agreement              Letter of response
                       including denials and
                       documents etc.
                       Proceedings issued                               must be
                      Enter outcome onto database
                      inform various departments

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