Tom Armstrong Susan Slade Rebecca Taylor-Onion Understanding Clinical Negligence and Litigation

Purpose of today What is a claim? Types of claim encountered Who is the NHS LA? Cost of claims Legal framework Litigation timetable How to mount a good defence Practical examples and strategy

What’s a claim in the NHS? A demand for monetary compensation in respect of allegations of clinical negligence and/or following an adverse non clinical incident resulting in personal injury or loss. Under NHS indemnity NHS employers are ordinarily responsible for the negligent acts of their employees where they occur in the course of the NHS employment.

Clinical negligence

Employer’s and public liability

NHS Litigation Authority The NHS LA handles claims made against NHS bodies regarding –Clinical negligence –Non-clinical risks (e.g. injury and loss to staff, patients and visitors)

NHS Litigation Authority Similar to in-house mutual insurer Funded by contributions from NHS Trusts Scheme operates on a ‘pay-as-you-go’ basis, not for profit, so funds are not diverted from frontline patient care unnecessarily

NHS LA approach NHS LA’s remit is to ensure claims made against the NHS are handled fairly and consistently, with due regard to the interests of both patients and the NHS. “we seek to settle justified claims efficiently and to defend unjustified claims robustly”

What’s the cost nationally? Clinical claims 2013/2014

What’s the cost nationally? non-clinical claims 2013/2014

What’s the cost Nottinghamshire Healthcare 2013/14 69 claims £493, /13 51 claims £812, /12 49 claims £562,026

What’s the cost - comparators

Torte

Tort Civil wrong which causes someone to suffer harm and loss Duty of care Breach of duty –Negligent act or omission Causes injury or loss

What needs to be shown in a clinical negligence claim? Treatment fell below an accepted standard of competence (as set by your peers) Patient has suffered an injury It is more likely than not that the injury would have been avoided, or less severe, with proper treatment

What needs to be shown in an EL/PL claim? Trust has failed in its obligations to provide a safe environment for its patients, visitors and staff. The failure has caused an injury.

Incident IR1 SUI Complaint Comments/ Investigation Request for records Letter of Claim/ Claim Notification Form Letter of Response Proceedings Defence Disclosure Witness Statements Expert Discussions Conference TRIAL Expert Evidence The Litigation Process

How to bring a claim Instruct a solicitor Request records Pre-action protocol – Letter of Claim Issue and serve Court proceedings –Claim form –Particulars of Claim –Medical Evidence –Schedule of Losses

What’s needed to defend a claim Early recognition of potential claims Prompt provision and review of full documentation –Trust records – contemporaneous account of events –IR1, SUI, complaints file – near contemporaneous account of events Comments of participants –Detailed witness statements considering pleaded issues Expert evidence –considering whether Trust actions were both reasonable and even if not, whether these caused less favourable outcome than expected

What’s the timetable Claimant’s Request for records – 40 days Letter of Claim – 24 hours to notify NHS LA and 14 days to provide full documentation and witness statements Letter of Response - 30 days from receipt of Letter of Claim Proceedings – 14 days to acknowledge with court Defence – 28 days of receipt of Particulars of Claim Court directions to trial

What if you don’t comply Defence strike out –Claimant will get full damages even in a potentially unmeritorious claim –Document due at 1600 hours has to be served by 1600 hours (Mitchell) Inability to rely on key evidence Loss at Trial Costs consequences

Why does it cost so much? Claimant solicitors’ fees –Hourly rates (up to £450 ph) –Success fee (up to 100%) –No win no fee insurance Claimant’s costs can be 10 times the level of the claim

How to avoid failure Early recognition of potential claim –Duty of candour –IR1 –Complaint –SUI –Request for Records Learning should be here, not by the time of a claim

Manager’s Feedback Form

Documents for slip claim Incident ReportRIDDORRepair/inspection/ maintenance records StatementsHSE documentationTraining Records PhotosHealth and Safety Minutes Job description Risk AssessmentsDetails of Similar Incidents Pay information

What can the Claimant see? His/her records IR1, SUI and any complaints file (including traffic and drafts) BUT NOT: Communications between lawyers and you or the experts or documents prepared purposes of litigation

Purpose of witness Confirm what happened The reasoning behind any decision made What the notes say What might have happened in an alternative hypothetical situation

What makes a good witness statement Keep to the facts Keep it honest Provide full account of involvement Make it accessible to a lay audience Don’t include any comment you would not want read out in court (or on the front page of the Daily Mirror!)

Expert evidence Considering whether Trust actions were both reasonable and even if not, whether these caused less favourable outcome than expected Your guidance assists in posing the right questions to the expert

Questions?

Practical Workshops IR1 Letter of Claim Clinician’s Feedback Form Claim Notification Form

Incident Report Form Highlight the good points. Highlight the bad points. What’s missing?

What is good about the form? Date and time of fall recorded Investigation carried out by a named individual Have contemporaneous information regarding the weather/whether any water was present at the time Identifies the cleaning contractor

What could be improved? No detail as to where exactly in ‘reception’ Claimant fell No photographs No witness details collated Change in handler caused delay in investigation No comments by relevant manager ‘Outcome details’ section is unclear. No changes will be made to prevent a further accident taking place

Investigation: Timeframe Notify NHS LA within 24 hours All documents to NHS LA within 14 days NHS LA to provide liability decision within 30 days

What information/documents do we need? Photographs – 3 years later Witnesses? – None identified in form Where exactly did accident take place? We don’t know Weather report Helpdesk log Other falls/complaints Cleaning system – contract with sub-contractor

How can we learn from this? Incident forms need to be as detailed as possible 3 years on – how many more accidents could have taken place? Include names Really think about how further accidents can be prevented Improve patient, staff and visitor safety Reduce legal costs so increase spend elsewhere

Letter of Claim Review Letter of Claim. What are the issues? What action is required? Who are the key people?

Letter of Claim Within 24 hours notify NHS LA of claim and within 14 days provide full documentation. Acknowledge Letter of Claim within 21 days. Medical records, complaint file, protocols, IR1, SUI. Comments on liability and lessons learned from: 1.Dr X 2.Dr Y 3.Psychiatric nurses NHS LA obtains expert evidence. Letter of Response.

Clinician’s Feedback Form Highlight the good points. Highlight the bad points. What’s missing?

What’s good about the form? Detailed chronology of events. Details of most of the participants. Comments on breach of duty by psychiatric nurses. Conclusion that this breach of duty caused death.

What could be improved? No helpful comment on reasonableness of discharge by the SHO. Insufficient detail on lessons learned / risk management. Derogatory comments about patient’s mother.

Claim Notification Form What documents do we need?

What documents to we need? IR1 Form Maintenance records Risk Assessment – car park Lighting records Contract with sub-contractor if applicable Witness details – statements Details of other accidents or complaints Photographs

Investigation: Timeframe Notify NHS LA within 24 hours All documents to NHS LA within 14 days NHS LA to provide liability decision within 30 days

Liability – lessons learned Clear there was a problem from the early investigations Risk assessment hadn’t identified kerb as a hazard Easy solution – fluorescent paint Repeated in all car parks Good preventative actions

What could it cost? Limited to £10,000 in Claim Notification Form HOWEVER Claimant’s hip didn’t heal, surgery required. He still requires significant care. Claim now estimated at £175,000 for damages. Claimant’s costs at £70,000 and our costs at £5,000. Total legal spend - £250,000.

Potential costs savings If liability is accepted within the timeframes in the new fast track system and damages can be agreed the Claimant's costs could be as little as £900