Essential insights: 2024 top claims trends for care providers

If you manage or lead a care service, the New Year is always a good time to check in on the risk management plans you have in place.

Regrettably, the frequency of claims against providers remains a concern, with some incidents being preventable. It is prudent to assess whether your current plans adequately address potential challenges. Given the dynamic nature of the sector, a myriad of factors can impact your operations over the course of a year – whether it's the onboarding of new staff requiring protocol reminders, upcoming construction projects that may disrupt regular activities, or the introduction of new services potentially introducing new risks – these are all good reasons to reassess your risk management plan.

Howden’s specialist Social Care team and the law firm, Bevan Brittan, have teamed up to share the top five trends they are seeing in the sector. Both businesses are involved with hundreds of claims notifications each year and have used their claims data from the last few years to draw out the key areas you may want to focus on.

1. Injuries

Injuries make up the largest number of claims and claims notifications (where a loss / incident is reported to the insurer) that we see at Howden. Albeit, the good news is that numbers have been steadily decreasing in recent years, suggesting risk management plans are improving.

These injuries encompass a broad range, including slips, trips, falls, burns, and pressure sores, with falls being the most common. While accidents are inevitable, especially with older or frail service users, the risks can be mitigated through effective risk management assessments and plans.

Thorough and regular training for your team is also important so that they know what to do if an incident occurs, including knowing how to care for the service user, alerting family members and following the appropriate written procedures. If you think the incident might give rise to a claim and you are a client of Howden, please also report it to our claims team.

2. Abuse and neglect

According to our data, the most common types of claims in this area we see are physical, mental and financial.

On a smaller scale, instances may involve staff members taking cash from a service user or using their credit card for personal gain, with more severe cases including sexual abuse of service users on rare occasions.

It is crucial to ensure that your team is well-trained to handle such situations. In addition to notifying Howden, reporting to authorities like the CQC, Safeguarding, Ofsted or the Police may be necessary, depending on the severity of the incident.

3. Unexpected death notifications

While unexpected deaths may not result in many actual claims, they are included in our 'top five trends' due to a significant number of notifications, which can lead to complications if not promptly reported.

In the event of an unexpected death at your care service, a coroner will be assigned to conduct an investigation. If there are lingering questions it is advisable to engage a solicitor. Promptly informing the Howden Claims team is essential, as it enables them to offer expert guidance on the necessary steps to take regarding a potential claim.

In some cases, care providers have delayed reporting to us for months, resulting in challenges with the insurer covering legal fees. Immediate notification is crucial to avoid such issues.

4. Poor risk management processes and record keeping

Another key area that gives rise to claims is a result of poor risk management and record keeping.

Effective risk management and meticulous record-keeping are integral components of any successful and responsible business operation, particularly in fields such as health and social care services. These practices carry significant importance for several reasons:

Proper record-keeping ensures that a business adheres to legal requirements and sector regulations. Failure to meet compliance standards may result in legal consequences and financial penalties. Well-maintained records serve as vital evidence in the event of disputes or legal claims. They can support the business position and help in the resolution of disputes, and safeguard against potential legal liabilities. This links strongly to quality assurance, where thorough record-keeping contributes to the overall quality assurance of services provided. It allows for the tracking of processes, identifying areas for improvement, and ensures best practices are consistently met.

A robust risk management system helps identify, assess, and mitigate potential risks before they escalate. Proactive risk management can prevent incidents, protect assets, and reduce the likelihood of legal issues and financial losses. Continuity planning plays a crucial role as it provides a historical perspective, aiding in the development of strategies to overcome challenges, recover from disruptions, and maintain service continuity.

In essence, the importance of risk management and record-keeping lies in its capacity to enhance organisational resilience, facilitate compliance, and contribute to the overall success and sustainability of a business or service provider.

5. Breach of Contract

Bringing a claim for breach of contract is a compelling alternative for recovering care home fees instead of the traditional medical malpractice route.

Quite often these claims will involve issues surrounding the care provided with the mention of incidents or falls (which technically should be treated as allegations of negligence, but are added to the facts and chronology of these types of claims).

The claims are often pleaded on a very broad-brush basis, for example, a resident/resident’s family seek 50% of all care home fees over a set period of time.

The resident will also be entitled to an award for amenity i.e. the impact of the injury on the resident’s enjoyment of life.

Plainly whatever the merits or otherwise of the allegations, as a starting point a reasonable proportion of care costs are fixed and would have been incurred in any event, regardless of any breach of contract and indeed any negligence. The costs that are fixed and not recoverable in these types of claims are non-staff, ancillary and premise costs.

It is also important to be alive to the terms and conditions in the contract between care providers and residents and that the terms of the contract do not impose a higher standard than at common law i.e. providing reasonable care and services.

We have seen clauses such as the care provider ‘will maintain the service user’s health’, where there is then a risk that if any claim were to be pursued, this may attract a higher award of damages.

Emerging risks

So, these are our top five trends. But we are also seeing a number of emerging trends that you may want to keep an eye on.

• Managing NHS overlay: Addressing multi agency challenges when residents move in and out of care, minimising risks linked to record-keeping and care plan updates, and the consequent failure to identify at an early stage errors or omissions in care.

• Brexit impact: Exploring supply chain issues including drug shortages and responsibilities regarding stockpiling and the impact of workforce shortages on resident care and safety.

• Engaging with large corporates: Considering collaboration with corporate clients for a refined offering, they have a ready-made approach and agenda for such gatherings, keen to explore further for 2024.

• Cyber kickback: Mitigating negative online PR effects, especially crucial due to CQC regulation changes, potentially adding substantial value to our offerings for clients. The impact of ransomware attacks on larger corporates, the leaking of personal data and ICO implications.

Final comments

In the vast majority of cases, our clients excel in promptly and accurately reporting incidents.

One of Howden’s senior claims specialists, Maria Pavle, always says: “if in doubt, shout” as it is better to be over cautious when faced with a potential claim on your policy. If you are not sure whether to report, we are always on hand to review and discuss any potential notification and advise on the way forward – whether that is a wait and see approach or whether it is to proactively manage any potential or threatened claim arising out of an adverse incident or complaint.

If you delay reporting, you may have the issue of ‘late notification’ which will cause coverage problems with your insurer and policy.  

Contributors

Richard Hearn, Divisional Director, Howden

Julie Charlton, Partner and Head of Medical Malpractice and Social Care Litigation, Bevan Brittan

Tim Hodgetts, Partner and Head of Health and Care Resolution and Regulatory, Bevan Brittan