Many doctors and surgeons maintain a rewarding and busy private practice providing treatment to patients funded by a private health insurer, such as BUPA, AXA, Aviva or Vitality. This is often an attractive choice for both practitioners and patients, allowing tailored treatment to be delivered outside of the many constraints of the NHS.

As with all types of insurance, private medical insurers will normally only cover the costs of such care if specified strict criteria have been properly met. Where those requirements are complied with, there is a risk that either the practitioner or the patient will not be properly paid or reimbursed for the treatment provided. One area where disputes with the insurer can commonly arise is billing of the practitioner’s fees. If an insurer considers that the practitioner’s bill fails to comply with its stated requirements, it can refuse to pay the practitioner. Where an insurer perceives that a practitioner is repeatedly submitting bills which are not compliant, this can trigger an audit for the purposes of scrutinising the individual’s billing practices. This can lead to rejection of further bills – or even a demand for reimbursement of previous payments.

Potential implications of a billing dispute between a doctor and an insurer?

Where there are concerns that a practitioner is not adhering to billing rules, such as not using the correct billing code for the correct procedure, the insurer may undertake an internal investigation. If the insurer concludes that appropriate billing practices are consistently not being followed, the insurer might not be willing to engage the practitioner’s services in the future. If a billing dispute with an insurer leads to the practitioner being ‘derecognised’ by the insurer, this prevents the practitioner from seeing patients covered by that insurer. This could lead to an immediate and significant loss of earnings for the practitioner.

Depending on a number of factors, if a practitioner is ‘derecognised’ by a particular insurer, this could in turn lead to private hospitals or clinics suspending the practitioner’s practising privileges.

An insurer may also conclude that the billing practices go beyond mere inaccuracy and amount to fraud or dishonesty. Such a conclusion is likely to trigger a General Medical Council (‘GMC’) referral that could become an investigation into the practitioner’s fitness to practise. During a GMC investigation, it is possible that the practitioner’s GMC registration can be suspended or restricted whilst the allegations are fully investigated. The Medical Practitioners Tribunal has recently heard a GMC case which stemmed from an audit investigation undertaken by a private health insurer. In that case, the alleged use of incorrect codes in the submission of the practitioner’s invoices led to allegations of dishonesty being raised against them.

Therefore, the potential implications of a billing dispute between a GMC-regulated practitioner and a private health insurer could become very serious. Aside from the obvious impact on a practitioner’s financial situation if the range of patients they can see is suddenly limited, such investigations often also present a risk of reputational damage which can linger long after the process has concluded. This is often accompanied by a significant amount of stress for the practitioner which can result in a negative impact upon emotional wellbeing.

What can you do to avoid a billing dispute?

As in most medical scenarios, prevention is better than cure. The first step is to be aware of the kind of scenarios that can lead to billing disputes, and make sure that you understand the rules and requirements for all the private health insurers that you have a ‘recognition’ with. Some of the more common causes of disputes include:

• Using incorrect billing codes when submitting invoices
• Charging above insurer approved fee rates
• Unbundling (billing separately for procedures that should be billed together)
• Providing incomplete or inaccurate medical history
• Omitting material facts
• Providing unclear information about the complexity of procedures
• Keeping poor or inaccurate supporting records

Insurer requirements are often detailed and complex – and they are revised from time to time. It can be very easy to inadvertently fall foul of the criteria when submitting invoices. The risk of mistakes can be minimised by ensuring that you implement accurate billing practices, and review them regularly to keep them up to date with the insurers’ requirements. The best ways to avoid a billing dispute with private medical insurers are to:

• Ensure that you understand the insurer’s requirements and billing principles, and periodically review these
• Check bills carefully for accuracy prior to submission
• Check with the insurer if you are unsure about the correct code to use when submitting the claim – most insurers have a ‘code checking’ service for practitioners, so do use it
• Ensure that you seek pre-approval for treatment from the insurer where required
• Where pre-approval is required, instigate discussions with the insurer at the earliest opportunity
• Maintain transparency with patients and insurers about fees
• Keep full and accurate records of all treatment provided and discussions with insurer
• Keep full and accurate records of any agreements with insurers about the fees you can charge for specific tests of treatments. Even if the insurer changes its ‘standard’ fee for a particular test or treatment, you may still be entitled to charge a higher fee if you had specifically agreed that in writing with them – but the burden will be on you to prove that to them if they question the charge.

How should you deal with billing dispute if one arises?

If you do find yourself involved in a billing dispute, it is best to take it seriously from the outset and take pro-active steps to prevent the situation from escalating. The first practical step to take is to ensure that you understand the substance of the dispute. For example if the insurer is concerned you have used the wrong billing code, take time to consider whether this could be a miscommunication about the precise nature of the procedure, treatment or test. You will always need to review your records to remind yourself of what treatment was provided and how you submitted your bill. It may also be necessary for you to review the insurer’s billing requirements – you may find that you had been unaware of changes to codes or requirements. Early, open and careful communication is often key to resolving such matters quickly. If you can see that a mistake has been made, the best course of action is to communicate this to the insurers and work with them to try to resolve and rectify the issue. If, having reviewed the matter, it is still unclear to you why the bill is being rejected, politely ask for further clarification from the insurer.

On the other hand, if you remain of the view that your bill was appropriate and should be paid by the insurer once you have reviewed all of the relevant information, you should explain to the insurer why you consider your costs are justified. In doing so, you should collate and provide to the insurer all of the evidence that supports your position. If an agreement with the insurer cannot be reached right away, you should consider seeking independent legal advice on how to best resolve the matter.

Whatever the scenario, be mindful of the tone and content of your communications with the insurer. Whilst such matters can become frustrating for a practitioner, you should strive to appear reasonable at all times. Remember that there is a significant imbalance between the commercial power held by the insurer compared to yours. The terms and conditions that many insurers have with their registered practitioners enables the insurer to de-register the practitioner at the insurer’s discretion. Even if you think the insurer is entirely in the wrong, any perceived discourtesy from you is unlikely to help you reach a favourable resolution! Any responses that you do provide to the insurer should be carefully checked for accuracy to avoid any suggestion of dishonesty being made further down the line. You should also keep a careful record of the correspondence and discussions that take place. Taking this approach will also assist you in the event that matters escalate in the direction of a GMC referral or suspension of practising privileges.

How can Incision help?

Involvement in billing disputes with private insurers can be challenging, but Incision is here to support you. Incision provides a 24/7 medico-legal helpline to assist you when such issues do arise. As your medical indemnity provider, we can advise you on how to minimise the risk of any potential referral to the GMC or suspension of practising privileges, and when you should consider seeking independent legal advice in relation to any dispute. Our sympathetic and knowledgeable medico-legal advisors are ready to provide you with expert assistance in dealing with these difficult situations.

Patient Information Leaflets - Why Are They Useful?

Informed consent is an integral part of medical practice. Practitioners will be acutely aware of the importance of ensuring that patients are active participants in their own treatment, and fully appraised of risks and benefits before making decisions about their care. The process of taking informed consent must be thorough, well documented and understood by the patient – these are professional and legal obligations. Any deficiencies can leave practitioners vulnerable to allegations of failure to obtain informed consent, potentially leading to clinical negligence claims (even if there was no negligence in the procedure itself), disciplinary action, suspension or withdrawal of practising privileges, or referral to the General Medical Council.

A patient information leaflet (‘PIL’) plays a key role in providing a general understanding of what will be involved in a prospective treatment or procedure, the recovery process and the associated risks. They are useful to provide necessary and consistent information to patients, in a format that they can refer back to. Importantly, they can also be held on the patient’s file as confirmation of the information provided. Some practitioners prefer to go through the PIL with the patient themselves during consultation. Others send a PIL separately and treat it as a supporting document to the individual discussion with the patient. Providers may also ask patients to sign the PIL to confirm they understand it and keep a copy on the patient’s file. Such practices are good methods of strengthening and evidencing, although not replacing, the wider consent process. They provide important protection for patients and practitioners.

Features of a good PIL

A sensible starting point for most PILs is background information on the diagnosed issue and the treatment being considered. Details such as a description of the medical problem, typical symptoms and causes, how it manifests and how it is typically treated should be included. Although the purpose of the PIL is often to provide information on a specific treatment or procedure, alternatives ranging from the least to the most invasive option should also be mentioned to ensure that the patient is aware that other choices are possible.

The PIL must set out a clear and thorough explanation into what the treatment or procedure will involve. It is of paramount importance that the patient knows what to expect. The PIL should include information about any steps that must be taken by the patient before or during treatment, explain what the treatment will entail and how long it will take, and what the expected outcomes are. If the treatment or procedure will involve a hospital stay, this should be included. If the patient will need to receive anaesthesia, this should also be stated along with whether a local or general anaesthesia can be administered.

Recovery process and after-care is another important area for a good PIL. Even for minor procedures, it is very risky to leave that information until after the treatment has taken place, because if a patient finds they can’t comply, they could be left with a poor outcome. Set out all essential, and recommended, actions the patient should take to ensure a smooth recovery. If the patient may not be able to partake in their usual activities for a time following treatment, this should be explained along with likely timescales. This has to be clear, because many patients will have to plan ahead to obtain time off work, arrange child or pet-care, or even rearrange holidays to accommodate the potential recovery time. Many patients find it helpful to be provided with a timeline of what to expect from the start of any preparatory steps, through treatment, to complete recovery. The timeline could also be used to convey information about follow up appointments, physiotherapy, exercises and normal reactions the patient could have, such as swelling.

For the patient to make an informed decision, they also need to understand what the unwanted outcomes and risks are. It would be good practice to set these out as two separate sections in the PIL. The first section can deal with the unavoidable but unwanted outcomes of treatment, such as scarring or a minimum recovery time. The PIL should make clear that the patient needs to consider whether they can live with the inevitable consequences of treatment when they are weighing up whether it would benefit them overall. Things like scarring or a week of bed rest might be almost irrelevant to one patient, but make the treatment entirely unacceptable for another. It all depends on what is ‘material’ to that particular patient, which will always depend on the patient’s own particular preferences and circumstances. The second section should address the risks of the treatment—complications that may occur in a certain percentage of cases but are not guaranteed outcomes. The risks section should include statistics on the likelihood of each potential risk wherever possible and provide a full picture of all possible negative outcomes of the treatment. There may be things that should appear in both sections – for example, scarring might be inevitable, but keloid scarring might be a risk that only manifests for some patients.

It is common for practitioners, from a variety of specialities, to be involved during the course of a particular treatment. But patients don’t differentiate between, for example, surgical risks and anaesthetic risks. If you are responsible for one type of risk but not another, make this clear in the PIL. For example, if you are a surgeon providing a PIL for a specific procedure, you should clearly state that the anaesthetist will discuss anaesthesia with the patient. It is important to clarify that the anaesthetist, not the surgeon, is responsible for advising on the risks related to anaesthesia.

When drafting your PIL, keep in mind that patients represent a cross-section of society and the majority are not medically qualified. Avoid technical language where possible and ensure that any medical terms which may not be easily understood are properly explained. It may assist you to ask a non-medically qualified friend or family member to read the draft PIL and highlight to you anything unclear to them.

Finally, PILs should be periodically reviewed and updated to ensure that they remain current. PILs should include a date from which it is effective and a version number, both of which will need to be updated in any subsequent version. Where an older version of a PIL is taken out of use and replaced with an updated version, ensure that you keep a library of all archived versions. This enables you to check which version was provided to a patient, if a signed copy was not included in the records and claim is made years later.

Using your PIL effectively to protect yourself and patients

PILs are clearly a valuable tool in keeping patients informed and aiding the consent process. Aside from the content of the PIL itself, how you use the PIL is also crucial to maximise benefit to the patient and, importantly, to protect yourself as a practitioner.

Any patient who is considering whether to go ahead with a particular procedure or treatment should be sent a PIL as early as possible. If the patient is considering different options before making a choice, they should be sent a PIL for each potential treatment option. The intended purpose of a PIL is to properly inform the patient in deciding whether to proceed with a particular treatment, or about which procedure to choose. It is not to provide information once they have already decided to proceed.

Some providers ask patients to sign the PIL to indicate that they have read and understood the information contained. Whilst this would represent good practice, take care if you intend to go further and ask that the patient signs to indicate that they wish to proceed with the treatment or procedure. In these circumstances, you need evidence that the patient has had a full opportunity to discuss the matter and ask any questions they may have, before signing the statement. This may require carefully drafting the statement you're asking the patient to sign to confirm their agreement. The best practice is to have the patient sign the PIL as part of the final consent process, along with the consent form, and then file it in their notes, ensuring they receive a copy to take with them. This ensures there can be no doubt about the exact PIL the patient had, should unfortunate circumstances arise such as a complaint or medical negligence claim.

In light of the Equality Act, it is important to consider that some patients might have disabilities (including hidden disabilities such as poor eyesight or dyslexia) that could make it difficult for them to read or understand the whole PIL. Similarly, you can’t assume that all of your patients will be fluent in English. Consider what ‘accessibility’ options you can offer and make it clear that help is available if needed. This will provide an additional safeguard against potential complaints that a patient couldn’t access the necessary information to give informed consent.

The most important point to remember is that while PILs are a key part of the consent process, they can never replace direct communication with the patient. It's essential to understand their individual needs, concerns, and what is ‘material’ to them, providing tailored advice and recommendations accordingly. Patient needs differ, so informed consent cannot be properly managed with a ‘one size fits all’ approach. A signed PIL, even a brilliantly written one, should never replace a discussion with the patient, nor a formal signed clinical consent form at the end of the process.

What if the hospital prepared the PIL?

Sometimes a practitioner has practising privileges at a private hospital, and the hospital has standard PILs which it provides to patients. Often these are well written and comprehensive, but sometimes they are not, or they have become outdated.

If the patient alleges a lack of informed consent because a poorly-written hospital PIL failed to mention a particular risk, then the claim will be against the practitioner, not the hospital. Therefore, if your patients will be receiving a hospital’s PIL, then you need to take steps to protect your position and ensure your patients give properly informed consent.

You should keep your own copies of the hospital PILs, keeping a library of updated versions as they are introduced. This is important, because a claim could be made years after you stop working at the hospital and lost access to copies kept by them. Hospitals do not always keep a copy of the PIL on the patient’s individual records, so having your own copy of what the patient should have received can greatly assist your defence, if one is required. Carefully review the hospital’s PILs to ensure they cover all necessary information. If you believe improvements are needed, you can, of course, raise this with the hospital management. In the meantime, consider creating your own supplementary PIL to complement the hospital's version and address any gaps. You would need a robust system to make sure every patient received that additional PIL and to record that fact on their individual records. At the very least, you should ensure that any matters not covered by the PIL are directly discussed with the patient and carefully documented on the consent form before the patient signs it.

However, if you have copies of a hospital PIL, take care to only use them for that hospital’s patients, and don’t ‘cut and paste’ information from them to use in your own PILs for other patients. There have been cases where a hospital has learned that a practitioner is using the hospital’s PIL for other patients, and made allegations of Intellectual Property law breaches!

How can Incision help you?

Ensuring that a robust patient consent process is in place can be a source of stress for busy practitioners, but we are here to help. Our dedicated medico-legal team can give you guidance and answer any queries you may have on the legal aspects of informed consent, including providing assistance with the drafting and content of PILs.

If you receive a complaint, notification of investigation or claim, whether related to patient consent and PILs or otherwise, then you should call our medico-legal team right away. We can assist you with the matter, make sure that your insurers are notified if necessary, and arrange for you to have formal legal advice and representation where necessary.

Contact us on our 24/7 helpline for expert guidance and support from our knowledgeable medico-legal advisors.