Liability Claim/Incident Reporting Procedures

Association of Ontario Midwives and Insured Ontario Midwives

Definitions

• Statement of Claim/Notice of Action – A time sensitive legal document drafted by a person wishing to sue (or his/her legal counsel) detailing the facts which support the allegations against the defendant (e.g. midwife) and the relief sought: usually money in a civil action or lawsuit. A Statement of Claim must be responded to by defense counsel within 15 days of its being served.

• Service of a Statement of Claim/Notice of Action − The actual service or delivery of a Statement of Claim/Notice of Action to a named party by a Process Server.

• Claimant – Any person who asserts the right of recovery; any person who submits a claim.

• Loss Control – Activities implemented by an individual(s) or a healthcare organization in the post-incident situation to minimize or reduce the risk exposure associated.

What to Report

Minor incidents or complaints are generally not reported to HIROC, BUT if a midwife has any suspicion that a legal action/lawsuit might arise from such an incident in the future, HIROC encourages the midwife to treat the incident (internally – i.e. within the practice group) just as if it were a claim. Loss control efforts such as securing records, monitoring strips and any pertinent supplies or equipment involved, should be instituted. By doing this, you will be prepared to file the claim should something untoward develop at a future date.

We suggest that the following types of events be promptly reported to HIROC:

1. Birth of any infant whose well-being is in any way compromised, or suspected of being compromised prior to, during, or at the time of birth, whether or not the compromise is as the result of midwifery care. “Compromised” could involve any of the following: neurological impairment or asphyxia, circumstances of birth are suspicious, events leading to physical injury during the birth process (e.g. shoulder dystocia), seizure activity, concerning low Apgar scores, etc.

2. Service of a Statement of Claim/Notice of Action.

3. Receipt of verbal or written demand: a. Request for compensation as the result of midwifery services provided; b. Request to access client records ‘in anticipation’ of a claim against an insured midwife.

4. Threat or suspicion of a claim for alleged error, omission or negligent act.

5. Receipt of a demand to respond to (or appear before) the Office of the Coroner, inquests, or any other authorized or commissioned investigating body in relation to your capacity as a midwife.

6. Verbal complaint (such as dissatisfaction with care) that the midwife believes may result in a legal claim.

The other key reporting issue is the need to immediately contact HIROC should the status of a reported incident/claim change – e.g. if a diagnosis of Cerebral Palsy is made or alleged sometime after you have reported the incident/claim to HIROC.

Loss Control

HIROC believes loss control is everyone’s responsibility. To ensure the proper coordination of loss control efforts following any incident, it is important for each midwife to familiarize her/himself with the risk management procedures of the hospital(s) and practice group(s) with whom they are associated, and with what their respective risk management roles and responsibilities are. In the home birth and midwifery clinic setting, the midwife her/himself will coordinate and implement any loss control efforts. In the hospital setting, midwives are encouraged to assist and cooperate with the hospital in its loss control efforts.

For example, carefully consider the following:

• In the hospital setting – ensure the hospital’s risk manager is immediately notified following any critical/serious incident.

• The need to locate and secure ** (e.g. lock-up) potential ‘evidence’ such as the client record, any test results, monitoring strips, equipment and supplies (including disposable items) involved in the incident.

• **Hospital setting: the hospital is the custodian of such ‘evidence’. Do not remove such ‘evidence’ from the hospital.

• **Home birth or midwifery clinic setting: the midwife her/himself is the custodian of such evidence.

• The advisability of retaining the placenta for pathology examination.

• The advisability of taking a photograph of the placenta, and of the umbilical cord if its appearance is at all unusual.

• Where equipment fails or breaks, do not repair or return equipment or supplies to the manufacturer/supplier until all investigations have been completed (or until discussed with HIROC).

• Do not destroy the paper version of a client’s records. HIROC suggests that the paper version of such client records be retained for a period no less than any statutory limitation period during which action may be commenced on the infant’s behalf and/or less than any regulated retention period – i.e. in Alberta, age of majority plus two years. Retention and storage procedures should consider the need to access files several years following the incident.

Disclosure Considerations

Each midwife should be familiar with the AOM Disclosure Guideline (available in the AOM Members Only Website) and with their hospitals’ disclosure policy and expectations. Following any critical/sentinel incident, please consider consulting with the AOM, hospital(s) where you maintain privileges and/or HIROC before engaging in any process of disclosure. HIROC fully supports disclosure, but is extremely aware that a poorly handled disclosure can cause more harm than good for all parties. If HIROC staff can be of any assistance with your disclosure considerations, please do not hesitate to contact us! Always remember, disclosure is a process that often takes place over several meetings, as the facts become fully known.

How to Report a Liability Claim

Step 1

Ensure loss control efforts have been instituted following all critical/serious incidents.

Step 2

Complete the online Ontario Midwifery ‘Liability Claim/Incident Reporting Form’ as soon as possible after the incident or event. Forms are available at the HIROC website: www.hiroc.com “Subscriber Login/ Claims Reports” Site.

Midwives are encouraged to complete and submit their forms online. Once the form is complete, press the ‘Print’ button to print a copy for your reference. Then press the ‘Submit to HIROC’ button. If a field is not applicable, please indicate this by marking N/A or by providing a brief explanation in the field. Ensure the name of the person we should contact regarding this claim/incident is clearly identified on the Form.

Note: HIROC relies on the information provided on your Reporting Form to determine our next steps – e.g. whether to assign a lawyer to assist you. Please contact HIROC to discuss any pertinent detail not outlined on the Reporting Form!

Should you wish to keep a copy of the Form for your records, HIROC advises the copy NOT be retained in the client(s)’ health record but rather be secured in a separate file. Should you have any questions about whether or not to report an incident, or about how to complete the Form, please contact the claims department at 416-733-2773 or 1-800-465-7357.

Step 3

Gather other pertinent documents (where available) and send copies to HIROC at [email protected]. For example:

• Statement of Claim/Notice of Action.

• Written demand/notice/complaint from:

 Legal counsel (e.g. demand notices, request for access to client records…)

 Midwifery Health Disciplines Committee (MHDC) (e.g. pertaining to a complaint or investigation)

 Client and/or their family  Office of the Coroner

 Children’s Aid Society  Other commissioned or authorized investigating body.

If you will be mailing or faxing the above noted documents, please send them to:

ATTN: Gareth Lewis

HIROC Claims Department

4711 Yonge Street, Suite 1600

Toronto, ON M2N 6K8

Fax: 416-733-2438 or 1-800-668-6277

Timely Reporting

The value of your timely reporting of incidents and claims to HIROC cannot be overstated! Timely reporting helps HIROC recognize time sensitive and urgent situations that require our immediate involvement. Delays in reporting have proven to negatively impact our ability to defend a claim, resulting in increased expenses for all concerned, not to mention the very definite impact such delays can have on the mental well-being of all involved parties.

What HIROC Does

HIROC’s claims and risk management experts review all completed Reporting Forms and the attached documents in detail. We then send you an acknowledgment letter. Depending on the specifics of what you include in your report, we may then respond by:

• Contacting you directly (to clarify the nature of the incident, obtain further details, ask about loss control efforts, etc.), and/or

• Communicating with our adjusters, appointing legal counsel (where required to assist the midwife), fulfilling the policy conditions needed to process the claim.

Depending upon our review of the incident, an adjuster or lawyer may be assigned to assist you and to gather information such as a complete copy of the client record.