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Expect the unexpected

Simon Bentley looks at recent unexpected and unpredictable insurance claims and advises providers to make sure their risk management is robust.

Quality standards (or risk management) are vital to care homes and domiciliary care providers. They help keep service users, employees and visitors safe and secure by reducing the chance of injury, accidents or death and subsequently prevent the associated lawsuits.

Although good quality standards inspire general good practice and lead to positive Care Quality Commission reports, it is hard to plan for everything. Danger lurks around every corner and even the most risk-aware care businesses can run into unexpected problems.

We handle these unexpected incidents on behalf of clients all the time, some of which turn into insurance claims. Although they’re unexpected and unpredictable, they may help providers to consider issues they may not have in the past.

Client with paraplegia suffers burns

A homecare client with paraplegia was having his feet washed by his care worker. The water was run and left on the floor. The care worker left the room, intending to return and wash the client’s feet once the water had cooled down. However, the service user was able to reach the bowl and decided he would wash his own feet. He was unaware that the water was just below boiling point and having no feeling or nerve senses in his feet could not feel the heat.

He suffered burns as a result and brought a personal injury claim against the domiciliary care agency. While the claim is currently ongoing, it will almost certainly result in him receiving a significant payment for his injuries received from an accident which could so easily have been avoided.

Had the care worker been safety conscious and not left a bowl of boiling water unattended on the floor, or informed the gentleman of the fact it was too hot to use, this would not have happened.

This case also emphasises how important it is that staff have a good knowledge and understanding of clients and their capabilities as well as communicating clearly where possible. If care workers have any doubt as to their knowledge they should be cautious.

While the gentleman involved here has suffered injury to his skin, thankfully he continues to make a good recovery.

Oven explodes injuring employee

A care home employee suffered serious burns after the gas oven she was attempting to switch on suddenly exploded. Thankfully, she was not seriously injured and was able to return to her duties within a fortnight. However, an employer’s liability claim has been brought and is ongoing. Investigations are being carried out at the home to establish the cause.

In this case the oven was reasonably new, but the reason for it exploding is the subject of a Health and Safety Executive (HSE) investigation. If the home is found to have fitted the oven improperly, this will likely result in HSE prosecution. This will give the employee a more than reasonable chance of succeeding in claiming for damages.

All kitchen equipment must be fitted, tested and certified by appropriately qualified personnel (eg an electrician or Gas Safe qualified engineer), then tested at regular intervals to be sure it is safe, fit-for-use and complies with the regulations set out by HSE. It is also important to make sure it is bought from a reputable catering equipment company and supplied with the appropriate safety certificates.

Resident fractures skull

A resident of a care home was checked at bedtime and was sitting in a chair. Ten minutes later the resident walked out of the room with blood flowing from her head. On being admitted to hospital it was found that she had suffered a fractured skull. She currently remains in hospital.

Marks on the wall of the resident’s room indicated she most likely had woken in her chair, decided to put herself to bed unaided and fallen while attempting to do so. However, it highlights some of the challenges facing care home owners. The resident suffered a serious injury when it would appear that all checks and procedures had been in place.

As per the care home’s procedures, it is important to regularly check vulnerable residents, especially those with poor mobility, and ensure areas they occupy are tidy and free of obstacles they might trip over. Unfortunately though, as this case shows, accidents do happen and at times they can happen without anyone really being certain of what has occurred.

This is currently an open incident that is being investigated by the home and no formal public liability claim has been submitted by the resident or family of the resident. However, the family are taking legal advice with a view to bringing a claim. The resident remains in hospital and is unlikely to return to the care home, especially in view of the family’s opinion that the home is responsible for their relative’s injuries.

Service users knocked over on the road

A husband and wife were on a weekly outing with their care assistant when they were knocked down by a car. Both sustained injuries but neither husband nor wife were seriously injured. Paramedics attended but both were allowed on their way after a thorough check and soon made speedy recoveries. This has as yet not become a formal claim and the care assistant’s employer is confident that all the correct procedures and risk assessments were in place should any formal claim develop.

With an incident such as this, the claim would most likely be directed towards the driver of the vehicle. However, the family and their legal advisers may feel the easiest course of action is to claim against the care provider, as a public liability claim, for failing to supervise and look after their relatives safely.

Insurers would be reluctant to accept a claim of this nature, but if the motorist is uninsured or untraceable it could be brought against the care provider.

In this situation it is key to be able to evidence all risk assessments and safety procedures relating to accompanying service users on outings. This may include ensuring all accompanying care staff are suitably trained, the physical transferring of clients in and out of wheelchairs or vehicles, gaining the correct level of authorisation for the trip (eg from a registered care manager or the clients’ relatives) and recording in the care plan that the clients are both able and willing to go on such an outing.

Carer breaks toe

A live-in carer, working for a domiciliary care agency, got out of bed and stubbed her toe on the bedframe. After confirming the toe was broken she took six weeks off work. However, to date she has failed to produce a doctor’s note, either as evidence of not being able to work or a ‘fitness to return to work’ certificate. As a result, she is deemed to have taken unauthorised leave.

Her employer had undertaken all necessary checks and risk assessments which would avoid the employee making a successful employer’s liability claim against them. They also took advice on how to deal with the unauthorised absence. This led to the employee being disciplined and she has subsequently left the employment. However, the employer now has to wait to see if anything will develop following either this injury or her employment.

Unfortunately, sometimes employees make claims that may (or may not) be spurious in nature. This demonstrates the importance of having completed risk assessments, if for no other reason than to demonstrate to the Courts that your business is well-run.

Expect the unexpected

These examples have happened in one quarter of 2015. Although they are unusual in nature they highlight the need for good risk management, quality standards and insurance cover. All too often it isn’t just the unexpected that happens, but a sequence of events that you are never likely to be prepared for

As a result, it is so important that providers pay proper attention to quality standards. Those that implement these effectively will keep clients safe and secure, minimise the risk of litigation and operate smoothly and efficiently. Don’t forget that when choosing an insurer, only consider those regulated and authorised by the Financial Conduct Authority.

Simon Bentley is Manager at Howden Care (CHIS and PrimeCare Insurance). or

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