Medical practitioners obtain professional indemnity insurance to respond to liabilities arising from their practice. However, is the cover they obtain always broad enough? One negligent act can result in the involvement of multiple legal forums and/or claims – for example civil, regulatory, criminal and even judicial inquiries (such as coroners inquests). It is therefore key that medical practitioners are aware of the various claims and legal proceedings that can be brought against them and/or demand their assistance. If they do not, the consequences and financial cost of being uninsured or insufficiently insured (for claim payments or defence costs or legal support costs) can be significant.
Case study – Ian Paterson
By way of example, hitting the headlines recently are actions being brought against Ian Paterson, a specialist breast cancer surgeon who practiced at several NHS and private hospitals and clinics in the Midlands. Mr Paterson allegedly carried out unnecessary procedures on healthy men and women. For instance reference has been made to mastectomies on women who in fact only had benign lumps, which should have been investigated with simple biopsies; and “cleavage sparing” mastectomies on breast cancer patients which has subsequently resulted in further surgery to remove more tissue or the return of their cancer. (A “cleavage sparing” mastectomy is a technique which involves leaving tissue around the cleavage area for cosmetic reasons, but goes against national guidelines which state no excess tissue should be left behind as this could result in the return of the cancer).
Mr Paterson faces multiple investigations and sets of proceedings. In January this year he was charged with 21 counts of unlawfully and maliciously wounding with the intention to cause grievous bodily harm. This follows a suspension by the General Medical Council in 2012. The GMC investigation continues but it is anticipated that a disciplinary process will follow. In addition, numerous civil claims have been brought by former patients who Mr Paterson operated on, both privately and in the NHS. If the hospitals in question should also face claims from these former patients, he may face further civil claims in the form of contribution claims.
Extent of insurance
The example above highlights the various types of proceedings a medical professional can face as a result of only one
alleged negligent treatment or procedure. It is therefore extremely important for professionals to ensure that the insurance they have in place provides adequate cover across all potential claim types and does not unduly confine cover or exclude elements (eg, NHS or expert work) that may ultimately be required.
Discussions with brokers or indemnity providers to fully understand not only the level of cover and the relevant policy requirements, but also the extent of the insurance purchased and/or how different policies may interact are crucial. As policy wordings can vary immensely, it is important for practitioners to understand whether they are purchasing a collection of separate policies underwritten by various insurers or a single policy underwritten by a single insurer or a group of insurers (who already have a collective working agreement or scheme in place). If separate policies are purchased, then checking and understanding how these will interact is also important as co-insurance clauses can be unclear, which may result in confusion and uncertainty (as to whether a matter is insured and by whom) when a claim is made and a professional simply wants reassurance that cover is confirmed. There is also the question of which approach may be most cost effective given premium payments and potential excess considerations.
Cover available elsewhere?
In addition, for those working in positions that have multiple roles and/or duties, it is also important to be aware of whether insurance policies held by an employer may offer an indemnity for such claims. In addition to practitioners purchasing their own professional indemnity insurance, employers (such as private hospitals, care homes, out of hours service providers) will also purchase other insurance policies, for instance for their Directors and Officers, Public Liability and possibly their own medical malpractice. In certain circumstances these may respond instead of the professional’s own indemnity policy.
For instance a Nurse Manager of a care home may find an indemnity available under the care home’s Directors and Officers policy for a regulatory investigation, due to the wider managerial issues arising. Or a secure hospital’s Public Liability policy may respond rather than a medical malpractice policy, when a patient injures themselves on site and the HSE investigates as the facilities were faulty rather than the treatment being negligent. Or the NHSLA may respond rather than a professional indemnity policy because although the treatment was completed in a private hospital, it was part of a contractual outsourcing agreement to reduce waiting times which ensure NHS indemnity provisions applied.
Again, the interrelationship of these policies may be unclear and establishing which insurer or indemnifier will ultimately provide cover, can be a sometimes confusing and uncertain process. However ignorance can be costly either because a policy may respond unnecessarily generating a claims record which impacts on future renewals, or the correct indemnity is not pursued.
One thing is clear, medical professionals need a clear understanding of their insurance to ensure that not only is the limit of cover sufficient, they can and do adhere to obligations and duties, but crucially the nature and breadth of their insurance (or other available policies) is sufficient for their needs too.