Briefing Paper 33.2013 Legal Services
TAUNTON AND SOMERSET NHS FOUNDATION TRUST
Patient Care Group
NHS Litigation Authority (NHSLA) and
Claims against Taunton & Somerset NHS FT
Date of Meeting
20 November 2013
Author of Paper
Anne Persey, Legal Services Manager
Sponsor of Paper
Judith Goodchild – Public Governor
Summary
Briefing Paper on the NHS Litigation Authority (NHSLA) and
Claims against Taunton & Somerset NHS FT
Confidentiality Status
Please tick if any of the following apply
(if confidential this paper will not
go on the website, and will be
dealt with under Part 2 of the
Agenda)
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The PCG are asked to note the report.
Action Required
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PCG Report
11 December 2013
Data protection – staff or patient detail
Commercially sensitive
Stakeholder management
Early stage of discussion – potentially prejudicial to
staff morale or partnership working
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Briefing Paper 33.2013 Legal Services
1.
INTRODUCTION
1.1
This paper outlines the relationship between the Trust and the NHS Litigation
Authority in relation to clinical and non-clinical claims. It covers the process followed
when a new claim is received by the Trust.
1.2
Through membership of the NHSLA, the Trust has insurance under three schemes –
the Clinical Negligence Scheme for Trusts (CNST) for clinical claims, the Liabilities
to Third Parties Scheme (LTPS) for accidental claims to staff and members of the
public and the Property Expenses Scheme (PES) in respect of loss or damage to
property.
1.3
The NHSLA positively encourages openness and honesty with patients when
something has gone wrong and has formally declared that an ‘apology is not an
admission of liability’. The Trust’s Being Open policy reinforces this statement and
encourages staff to say sorry at the earliest possible opportunity.
2.
GENERAL POINTS FOR CLINICAL NEGLIGENCE CLAIMS
2.1
Generally speaking, patients have 3 years from the date of treatment or 3 years from
the date of knowledge that they suffered injury in which to pursue a claim.
Exceptions are minors (3 year period begins on their 18th birthday) and those with
mental disorders where a limit does not apply. This is known as the 3 year limitation
period.
2.2
It will be alleged that clinicians have failed to work to a suitably professional standard
(breach of duty, Bolam/Bolitho test) and that, as a consequence, the patient suffered
injury and/or loss (causation).
2.3
Claims are dealt with initially under the Pre-Action Protocol for the Resolution of
Clinical Disputes where both parties are given an opportunity to declare their
position as to liability without recourse to the courts. Some claims can be resolved at
this point and some are discontinued. When liability is contested or the claim is
reaching the expiry of its limitation, a Claim Form is Issued at Court and formal legal
proceedings begin.
3.
PANEL SOLICITORS
3.1
The NHSLA has a panel of specialist solicitors they will instruct when claims are
complex or where court proceedings are contemplated/have begun. The Trust’s
panel firm is Bevan Brittan LLP based in Bristol, headed up by Joanna Lloyd, Partner.
3.2
One of the objectives set for the NHSLA by Parliament is to minimise the overall
costs of clinical negligence to the NHS and maximise resources available for patient
care by defending unjustified actions robustly and settling justified actions efficiently.
It is for the panel firms, in conjunction with the NHSLA to work out the chances of a
claim succeeding at trial, and the damages likely to be awarded and then to advise on
whether/how the claim should be defended or settled. The NHSLA will make all final
decisions as to the conduct of a claim.
3.3
The Legal Services Manager has a close working relationship with the Bevan Brittan
solicitors who keep the Trust updated as to recommendations they are making to the
NHSLA. The vast majority of decisions to admit liability and offer settlement will not
be made without recourse to the Legal Services Manager and associated clinicians.
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11 December 2013
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Briefing Paper 33.2013 Legal Services
4.
PROCESS FOR MANAGING A CLAIM
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Claimant instructs a solicitor.
Solicitor requests medical records and any complaint or incident correspondence.
Legal Services Manager opens a file and contacts relevant clinician for comments if a
complaint or incident record does not exist.
Solicitor obtains independent expert advice on liability.
If supportive, a letter of claim is sent to the Legal Services Manager with allegations
on breach of duty and causation.
The letter of claim triggers formal reporting to the NHSLA. A preliminary analysis
is sent by the Legal Services Manager detailing the chronology of events, a
preliminary view on liability and any recommendations for further action, ie advising
early settlement, obtaining independent expert advice on liability or seeking further inhouse comment.
The NHSLA may instruct Bevan Brittan LLP to obtain expert advice and advise on the
Trust’s letter of response that outlines the Trust’s position on liability and giving
reasons for those issues not agreed.
If the claim progresses, legal proceedings are commenced. The claim is notified to
the courts and formal allegations are made in the Particulars of Claim.
The Trust serves a Defence setting out its position should the case go to trial.
Formal witness statements are taken from factual witnesses identifying what they
would say on oath.
Factual witness statements are exchanged.
Expert evidence is exchanged.
5.
SETTLEMENT
5.1
Solicitors are constantly assessing the strengths and weaknesses of their position
and ultimately how a Judge would decide should the case go to trial. Offers to settle
may be made by either party at any time to bring the claim to early conclusion.
5.2
5.3.
At such time when a litigation risk is exposed or the costs of maintaining a Defence
far outweigh the likely damages, the NHSLA will advocate early settlement, with or
without an admission of liability. Most claims also result in a formal written apology to
the claimant from the Chief Executive.
It is extremely rare for a claim to proceed to trial.
6.
LIABILITIES TO THIRD PARTIES CLAIMS
6.1
Typical claims falling under this heading are employer liability claims (manual
handling, slips and trips) and occupier liability claims (public slips/trips).
6.2
They follow a similar process in terms of reporting to the NHSLA and a search is
made of relevant documentation, eg incident form, photographs, RIDDOR, Risk
Assessments, Health & Safety minutes, repair/inspection/maintenance records,
training records, Trust policies.
7.
LEARNING FROM CLAIMS
7.1
At the conclusion of every claim, any learning from the claim is documented on a
quarterly Return to the Learning and Improvement Group. Quarterly reports are also
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Briefing Paper 33.2013 Legal Services
sent to the governance leads on new and closed claims within their specialties and
their outcomes. These reports help inform their own returns to the Learning and
Improvement Group.
7.2
The Legal Services Manager is developing the claims section on the intranet for all
staff to access. Included within this will be anonymous case studies on lessons
learned from the investigation of individual claims and their outcomes.
7.3
Where claims are associated with a previous incident, a detailed Root Cause
Analysis (RCA) may have already been undertaken. This identifies in more detail the
contributory factors, root causes and importantly lessons that have been learned to
enable changes and improvements to be made. This information is shared with the
relevant departments for the actions to be implemented and is monitored by the
Governance Support Unit.
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11 December 2013
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