Medical Indemnity Explained

Surgeons work hard to deliver good quality healthcare but sometimes, even with the best experience and training in the world, things can go wrong.Often, these mistakes can have serious financial consequences for a patient, and therefore, the operating surgeon.

If a patient has suffered harm as a result of a surgeon’s negligence, it’s very important that the surgeonhas adequate and appropriate insurance (or indemnity) to compensate the patient.

Medical indemnity insurance responds to an accusation of medical malpractice, where the medical professional service provided was allegedly substandard, and caused physical or mental harm, injury or death to a patient.

Medical indemnity insurance is designed to protect the surgeon during the claims process, including any costs and defence fees arising from the claim. In cases where malpractice is proven, compensation is paid to the patient.

Sadly, our society is becoming more and more litigious and the risk of legal action against a surgeon for medical malpractice is increasing every day.

Membership of Incision includes Medical Indemnity insurance with a “claims made” insurance policy.

Our “claims made”Medical Indemnity insurance policy will cover you for “circumstances reported” or “claims made” during the period of insurance or extended reporting period (this is run off cover in respect of death, permanent disablement or retirement from independent practice).

So, as long as you are a member at the time the circumstance is reported, or the claim is made the claim will be accepted. This is also dependent on the incident occurring on, or after, your retroactive date and is subject to the policy’s terms and conditions.

You must notify Incision when you first become aware that a circumstance, a claim or an investigation is made against you. This must be done as soon as reasonably practicable and in accordance with the terms and conditions of the policy.

Please note that you will not be covered for claims, or circumstance arising from incidents, that occurred prior to your retroactive date. Matters that are previously known by, or have been notified to, you, your prior insurer(s) or Medical Defence Organisation (MDO) will also be excluded.

Surgeons working for the NHS (or for the HSC in Northern Ireland) will receive indemnity for medical malpractice claims through one of the following clinical negligence schemes:

• the Clinical Negligence Scheme for Trusts in England (which is administrated by the NHS Resolution)
• the Welsh Risk Pool Services in Wales
• the Clinical Negligence and Other Risks Indemnity Scheme in Scotland
• each HSC Trust (funded by the Department of Health, Social Security and Public Safety) in Northern Ireland

Surgeons should be aware that these schemes do not cover personal regulatory and medico-legal support and advice for work performed in the NHS or for HSC.

Currently, there is no statutory requirement for surgeons solely working for a trust or board in the NHS or HSC to purchase medical indemnity insurance.

However, in order to practice in the UK, the General Medical Council (GMC) stipulates that surgeons with an independent practice (including any medico legal work) must have “adequate and appropriate insurance or indemnity in place”, even if the independent practice is performed at NHS or HSC premises.

As a minimum requirement to be registered to practice in the UK, the GMC recommends that surgeons purchase Medical and Professional Liability for claims arising from (i) any independent practice, whether this work takes place on NHS or HSC premises or not or (ii) medico legal work, if this work requires a licence to practise.

The GMC also suggests that surgeons should:

• consider commercial legal protection for costs arising from fitness to practice procedures, GMC inquiries, coronial inquests or hearings etc.
• take out adequate and appropriate insurance or indemnity for the provision of medical care in emergencies outside work (Good Samaritan acts) and voluntary medical care (good neighbour acts).
• organise appropriate cover for liabilities that arise from independent practice after retirement.
• arrange medico legal support for advice and assistance.

In theory, the legal response regarding the required appropriate cover is:

“Cover against liabilities that may be incurred in practising as a doctor having regard to the nature and extent of the risks of practising as such.”

In practice, in order to comply with the GMC guidelines, surgeons will need Medical Indemnity that covers the full scope of their independent practice.

Membership of Incision provides surgeons with a comprehensive and competitive contract of insurance (not discretionary) tailored to individual practice profiles. The cover haslimits up to £20m from any one claim and £40m in the annual aggregate, access to 24/7 medico-legal advice and risk management videos and articles.

There are a number of potential pitfalls if a surgeon doesn’t purchase adequate or appropriate medical indemnity insurance; such as:

• Removal of a surgeon’s licence by the GMC. The GMC has regulatory powers to check whether surgeons have adequate insurance or indemnity and penalise surgeons if they deem it necessary;
• Losing practicing privileges at independent hospitals. It is unlikely that a surgeon will be granted practicing privileges, or be allowed to continue working, at any of the independent hospitals, if they don’t purchase medical indemnity insurance.
• Surgeons may be personally liable to pay compensation to a patient if their cover is insufficient.

According to the GMC, it is the responsibility of the surgeon to ensure that they have adequate insurance in place. Then their patients will not be disadvantaged if they need to make a claim for compensation.

It is therefore very important for surgeons to understand the policy details and to clarify the exact meaning of any clauses that they do not fully understand.Then, in the event that a claim is received, they know what they are covered for and what action is required.

Here are a few things to look out for:

Fair Presentation

It is the surgeon’s responsibility to make a “Fair Presentation” of their independent practice to underwriters. This allows the underwriters to decide whether to provide insurance or not and, if so, the terms and conditions of such insurance.

Insuring Clauses

The Insuring Clauses describes the breadth of cover that underwriters are insuring.

Exclusions

It is also important to be aware of exclusions contained in the Policy. Exclusions limit the scope any, or all, of the Insuring Clauses by excluding something that would otherwise be covered. For example, most policies will not cover any fraudulent, dishonest or malicious acts even if they arise within a surgeon’s medical professional services.

Notifying a Claim or Circumstances

It is vitally important that doctors ensure that they are familiar with the claim reporting procedures contained within the policy so that any notification of a claim or circumstances is in accordance with the policy terms.

As a member of Incision, you will be provided with an insurance policy designed to protect you from claims made against you arising from your Medical Professional Services and Professional Services.

The bespoke insurance policy consists for 3 sections; Medical and Professional Services Liability, Commercial Legal Protection and Cyber Liability.

Medical and Professional Services Liability

• Medical and Professional Liability
• Medical Malpractice

Liability for physical or mental injury, disease or death to any patient caused by any actual or alleged negligent act, error or omission by you in the course of delivery of non-NHS medical professional services. Good Samaritan acts

• Professional Indemnity

Liability to your client arising from any actual or alleged negligent act, error or omission by you in the course of rendering professional services.

• Liability for any actual or alleged libel or slander (that was not deliberate or reckless) committed by you in the course of rendering professional services.
• Breach of professional confidentiality
• Unintentional destruction of or damage to documents

• Public Liability
• Reputational Harm

Commercial Legal Protection

• Disciplinary Hearings

A representative to represent your legal rights in disciplinary hearings brought against you by the relevant authority, including appealing to the Privy Council following a decision by the General Medical Council, but does not include investigations. Representing you at an Inquest or Fatal Accident Inquiry proceedings where you are, or may be, implicated in the death.

• Contract disputes cover (non-motor)

A representative to negotiate for your legal rights in a contractual dispute arising from an agreement or alleged agreement entered into by you in a personal capacity, for the purchase or hire or sale or provision of goods or services, providing the amount in dispute exceeds £250 (including VAT) and the contract was entered into during the period of the policy.

• Personal injury

A representative to pursue claims arising from a specific or sudden accident that causes your death or bodily injury, excluding clinical negligence.

• Property protection

A representative to pursue your legal rights in a civil dispute relating to your principal home, or personal possessions that you own or are responsible for, damage to the property (the dispute must be valued over £250), a legal nuisance or trespass.

• Tax Protection

A representative to represent your legal rights throughout an investigation by HM Revenue and Customs that consider all areas of your self-assessment tax return.

• Legal Defence

A representative to defend your legal rights if an event arising from your work leads to you being prosecuted in a court of criminal jurisdiction, or civil action is taken against you under discrimination legislation or Section 13 of the Data Protection Act 1998.

• Clinical Negligence

A representative to defend your legal rights in a negligent act of surgery, or identified negligent clinical or medical procedure which causes you (as a patient) death or bodily injury.

• Debt Recovery

A representative to pursue your legal rights in a dispute relating to the recovery of money and interest due from the sale or provision of goods or services, including enforcement of judgements as a result from your work as a medical professional.

• Tenancy Disputes

A representative to negotiate your legal rights in respect of a dispute between you and your landlord relating to premises leased or rented by you for the purpose of your work as a medical professional.

• Identity Theft Protection

Reasonable and necessary costs and expenses to help restore your identity and credit status in the event of identity theft, including disputes with debt collectors or any party taking legal action against you arising from or relating to identity theft.

• Claims Review Service

Should your previous MDO exercise their discretion and refuse to settle a payment or have limited or withdrawn their assistance in respect of a medical professional liability claim, at your request, we will arrange for an appointed representative to review such claim or incident and advise if any further actions are available to you. The most we will pay for this service will be £1,000.

Cyber Liability

• Security and Privacy Liability
• Network Interruption Expenses
• Event Support Expenses
• Privacy Regulatory Defence and Penalties
• Network Extortion
• Liability Arising from Website Media
• Payment Card Industry Fines or Penalties