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Claims Defensibility for the Health and Care Sector

This is practical guidance on what to do to improve claims defensibility, particularly during periods of high demand and change for the health and care sector.

The healthcare and social care sector are experiencing unprecedented and challenging times due to the coronavirus (COVID-19) outbreak.

Good risk management practices can minimise exposures and improve the chances of successfully defending potential future claims, and therefore positively impacting overall claims costs in the long run.

Brian Brookes, Risk Manager at BHIB Insurance Brokers comments:

“Liability Claims by their very nature will be a constant as individuals will continue to seek financial remedy / compensation is areas of negligence, or perceived negligence. It boils down to the level of duty of care and your failure to provide the same at expected levels.

Insurers have a responsibility under your policy to respond fairly and reasonably to any claim for legal liability following your business activity and to defend your position as policyholder in the best way they can.

It must a Legal Liability.

In our experience, the majority of the total costs incurred are those of solicitors on both sides.

To be able to defend your interests, Insurers require you to have detailed evidence to establish precise circumstances of the incident and the level of Risk Management deployed by yourselves generally and specifically to mitigate the level of any exposure to third parties.”


1. Prevention:

Here are some useful tips on minimising the risk of an incident occurring:

  • Have an effective risk management system in place and review it often– this will minimise the risk of an incident occurring, and if an incident should occur, all the information is to hand.
  • Ensure commitment from the Board level downwards – clearly documented responsibilities and accountabilities is important.
  • Make sure your policies and procedures are clear and concise – in terms of claims defensibility, this can help everyone in the organisation follow safe working practices effectively.
  • Adopt recognised health and safety management systems – this will prevent incidents from happening in the first place and ensure the necessary records are in place.


2. Investigation:

Aviva strongly believes that the focus of thorough investigations should always be to prevent future occurrences, and the risk of the potential future claim should not deter you in doing this. The benefits of an effective investigation leading to pro-active improvements far outweighs the risks.

The following is advised in relation to claims defensibility:

  • Always take care of the person first, making sure their immediate needs are attended to
  • The sooner you start the investigation the better, before the scene becomes contaminated/altered
  • Take photos, draw sketches, obtain CCTV wherever possible
  • Ensure that trained, authorised investigators are leading on the investigation
  • Keep contemporaneous notes where appropriate
  • Collate copies of all relevant documents e.g. risk assessments, training records, inspection records etc.
  • Identify witnesses early
  • Be open-minded and avoid blame or hearsay in the reports
  • Implement findings and actions/improvements within agreed timescales
  • Consider legal advice, refer to the Aviva Loss Prevention Standard for further information.


3. Having the correct information available:

The following table lists examples of documentation and records that may prove vital in defending a claim successfully.

Insurers are required to have the appropriate evidence and they are also required to make it available within given timescales; 1 working day to acknowledge the electronic Claim Notification Form (CNF) and 30 working days (For Employers’ Liability) and 40 working days (for Public Liability) to make a decision on liability.

Keeping records safe and accessible is very important when it comes to defending a claim. Often, a claim has to be paid because the relevant documentation could not be found at all or within a reasonable timescale.

It is worth noting that an employer may be required to disclose the report and any findings to a third party’s solicitor during the investigation of a claim.


4. Change management:

The COVID-19 pandemic has created significant change in the healthcare and social care sectors. For example, site closures, introduction of new processes or changes to processes, relocation of employees and/or operations – all of which can present a significant risk in relation to claims defence.

Considerations should be given to:

  • Who will be responsible/accountable for managing change successfully?
  • Do staff need re-training or other support during this period?
  • How will you maintain good communication channels?
  • How will documents be retained and stored for easy retrieval in the event of a claim?


5. What if a dishonest or fraudulent claim is suspected?:

The Fraud Act 2006 is one piece of the UK legislation that covers insurance fraud related cases. The legislation contains three main offenses:

  1. False representations – dishonesty misleading a party with the intention to gain financially
  2. Failure to disclose information where there is a legal duty to disclose it
  3. Abuse of position through an act or omission where a person occupies a position where expected to safeguard the financial interests of another

Here are some tips on spotting potentially fraudulent claims or dishonesty:

  • No accident reporting when it was allegedly said the accident occurred
  • No witnesses at the accident
  • Unlikely circumstances
  • Injuries that seem more exaggerated
  • Extended periods of sickness absence leave due to the injury

Here are some tips on improving early detection:

  • Clear documented procedures in place for accident prevention
  • Relevant documentation collated together at the earliest possible convenience
  • Making best use of technology to support the investigation, such as CCTV or vehicle cameras
  • Introduce a “Whistleblowing” helpline for anonymous reporting


6. How well are we doing?:

It’s important to keep up with regular inspections/audits and review this against recent claims history or emerging risks such as COVID-19. Now may be the time to review how well the risks are being managed and lessons can be learned in preparation for any possible future wave of the pandemic or significant event.

The health and safety management team should be included in claims reviews and should be included in regular updates on new or revised claims data.

When reviewing incident reports and claims information, questions to be asked should include:

  • Is our incident/claims experience improving?
  • Are there any common trends or themes?
  • If we have been successful in defending claims in the past, can we learn anything from this?
  • If we have identified useful documents/policies/procedures, do we ensure that they are rolled out to all locations?
  • If we have to admit liability, was this justified? Are there any lessons learnt?
  • If we have identified gaps in information, have we ensured that they are revised and circulated?
  • Are suitable sanctions in place for those failing to comply?
  • Can we demonstrate that we take health and safety seriously?


7. Be aware:

A potential cause of an increase of claims is uncertainty, if employees feel their job security or income is at risk, they may well feel that they have nothing to lose by making a claim. Common causes of this uncertainty are redundancy, being furloughed, zero hour contracts, temporary, seasonal or agency labour.

If an accident occurs with an employee, there are things that can be done to minimise the risk of the injury leading to a claim. Having an effective rehabilitation process can increase the speed of their return to fitness as well as return to work.

The Aviva Injury Management (AIM) service provides:

  • Easy access service which fits your business needs
  • Early intervention
  • Clinical assessment and advice
  • Access to effective treatments
  • Dedicated in-house case management


8. For more information:

This information has been provided by Aviva. Click below for the full guide, including a Claims Defensibility for the Health Care Sector Checklist and additional links and useful information.