Newsletter June 2021 – Joel Melton
As a surgeon running an NHS and a private practice, I understand the need to focus on patient care as much as possible, without distraction. I understand the view that indemnity is something that is done once a year on renewal, associated with an administrative burden and an uncomfortably large financial outlay, which can then be forgotten. When we consider the essential nature of medical indemnity, it is crucial that surgeons do not take their indemnity cover for granted and that we fulfil our contract to ensure that we are actually indemnified for every case. Every year in the UK, there are reports of surgeons with active indemnity cover in place that are being left personally liable (facing 100% of any costs to defend a case) due to a failure to notify their indemnity provider within the time limits of their policy leading to a subsequent lack of cover.
When the policy is agreed, both surgeon and indemnity provider are agreeing to a bi-directional contract that obliges the indemnity to be provided to cover any cases notified by the surgeon. The cover is in place as long as notification of a potential claim is made in the specified timeframe, which will be clearly documented in the terms and conditions of your policy documentation. The industry standard is for notification is less than 30 days. Your policy will stipulate the need to notify the indemnity provider (MIC, for OTSIS members) of any case that may potentially lead to a claim, not just cases where a claim is certain to progress. This means complaints made to you personally, to the Hospital that you are made aware of, concerns raised regarding complications and potentially cases where the patient is simply unhappy with general aspects of care. We may believe that it is extremely unlikely that these examples above will translate to litigation, but the requirement to notify remains.
Can notifying of a case benefit us?
Let me give you a brief example of case. A patient recently had an unfortunate complication after surgery and they were unhappy with the standard of aftercare from the Hospital. They had been warned of the complication, with documentation in the clinic letter and in the consent form. The patient wrote a letter of complaint to the private hospital, which was forwarded on to the surgeon. No direct complaint was made regarding the surgeon or the quality of the surgery. The surgeon immediately notified the broker, who discussed with their medicolegal advisers and notified the underwriter with a report of the case. The medicolegal team working on behalf of the surgeon were able to work with the hospital to prepare a response to the patient, which, arguably, provided additional protection for the surgeon. The patient subsequently proceeded with legal action against the private hospital but not the surgeon. The surgeon may yet become ‘caught in the crossfire’ of the legal proceedings, but they will be indemnified if that is the case. Had they not notified, that cover could not be presumed.
So when should we notify?
The concern of increased premiums may be a reason that individuals may be reticent to notify, but the prospect of invalidated cover and personal liability to defend a case may be a great deal more costly. If you find yourself asking the question of whether to notify for a case or not, you should probably go ahead and notify. The practical and medicolegal advice that the team from MIC can provide will likely be welcome, and let’s face it, this is exactly what we pay for. This interaction between us (as policy holders and OTSIS members), our underwriters, our brokers/medicolegal team (MIC) and the OTSIS Clinical Board helps us to ensure that we are actually indemnified for every case so that we can continue focusing on the delivery of patient care in the knowledge that we will not face personal liability for defending legal actions.