Newsletter March 2022 — Medicolegal Update.
Emily Borhan
OTSIS Specialist Medicolegal Advisor
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Do not take the risk – notify it!
As a working medical professional in the private sector, your indemnity is probably the most important purchase that you make each year. Part of the agreement with your indemnity provider is to inform them of any issue that could potentially give rise to a claim under the policy, even if there is no immediate claim or complaint. This is very important, as a failure to notify that incident could affect your coverage for that incident in the future.
It is assumed that nobody intentionally tries to avoid notifying circumstances, but it can often be quite hard to determine what is, or what is not, a notifiable circumstance; or it could even be that your indemnity is not the first thing you think about when an issue arises. I cannot stress enough how important it is to question this the next time you are faced with a problem.
I have recently been assisting a member who found themselves stuck in a difficult position. In summary, the member received a complaint from a patient who had been unhappy with ongoing pain following knee surgery. The patient subsequently made a series of allegations about the member to the hospital. The allegations were completely unfounded; the hospital carried out their investigation, which was found in favour of the member, and the complaint was dismissed.
The member felt that as the situation had resolved, he had done nothing wrong, and he did not therefore notify it to his insurer. About five months later, the member received a letter from the GMC informing him that a complaint had been made and an investigation was taking place. At this point the member notified his insurer and asked for assistance, but unfortunately, he did not receive the guaranteed assistance he was asking for. Instead, he was told that the “policy position” was being reviewed as the matter had not been notified at the point when the patient had first made the complaint.
The “policy position” in this circumstance is still being disputed, which meant the member was left to instruct a solicitor privately, and personally meet the costs to obtain assistance for the investigation. A very expensive and unfortunate situation – and one which would have been avoided with early notification.
It can be hard to determine exactly when you need to notify something under your policy. In the wording of the policy, it states that anything “which may reasonably be expected to give rise to a claim under the policy” should be notified. But what does that mean? The nature of your work often leaves you with patients who are not entirely satisfied with treatment. It could take some time for a patient to be ‘cured’, if at all, and naturally, they may question treatment along the way. In most situations it will be something that stands out as being ‘different to the norm’. Is there a patient who appears to be very unhappy, expressing a level of dissatisfaction that you do not normally see? Have you received a formal complaint, an email, or a letter? Has there been an internal investigation relating to the treatment you provided? These are all examples of circumstances that should be notified under the policy. It may not be something that immediately rings alarm bells, but something that going forward, were it to escalate, could develop into something more serious. Even in situations where you are not the primary focus of the complaint, there is a chance that you may be dragged into it at a later stage.
The world of litigation is often an unfair place, focused more on financial gain than morality or equity. Complaints can come out of nowhere, involving patients that you least expected. To protect your position, it is always better to be safe and to notify something. If you are ever in doubt, pick up the phone and call the OTSIS medicolegal advice line.