The Health Care and Associated Professions (indemnity arrangements) Order 2014, which came into effect in July of that year, requires all regulated health professionals to be covered by professional indemnity insurance. This ensures that should a claim be made by a patient alleging malpractice, negligence or a breach in clinical or professional care standards, health care professionals can meet the cost of any compensation awards.
Who needs cover?
The legislation covers all health care professionals, including:
Doctors working for the National Health Service, in general or in private practice;
The type of indemnity insurance and level of cover required depends on where the practitioner works, what their duties entail, and whether they are employed or self-employed.
Why do health care practitioners need cover?
Working in medicine and health care provision may be extremely rewarding. However, the pressure can be intense and whilst health care professionals strive to give the highest levels of service, mistakes, when they occur can carry serious consequences for all involved. Furthermore, the media is encouraging a more litigious society with plenty of professional help on hand to take cases on a no win no fee basis. It is essential that health care professionals are covered by medical indemnity insurance so that claims for compensation from patients found to have a legitimate case can be met.
Adequate and appropriate cover
Medical indemnity insurance must be adequate and appropriate. This means that it should provide cover for all aspects of insured person’s practice and be of sufficient value to cover the most serious potential financial award. Health care professionals should seek advice about their cover from for example, Medical Defence Organisations, mutual, non-profit making bodies which will provide advice to their members on medico-legal matters that fall out of the scope of NHS indemnity cover. Alternatively advice can be sought from a commercial insurer. A healthcare professional seeking advice or taking out cover must ensure that they provide up-to-date and comprehensive details about their practice and they should review any cover provided on a regular basis, particularly when they have undergone a change in duties.
Medical Defence Organisations in England are The Medical Defence Union and The Medical Protection Society, both based in London. In Scotland The Medical and Dental Defence Union based in Glasgow also provide advice.
The General Medical Council’s (GMC) Position
In order to practice in the UK a doctor must register with the GMC. The GMC can check that a doctor has medical indemnity insurance and will do so where they have information that this is not the case. If a doctor does not have the insurance or refuses to provide the requested details then the GMC will remove that doctor’s licence to practice. Similarly, if a new doctor seeks registration with the GMC they will be asked to submit evidence to confirm that medical indemnity insurance will be in place from the date they start to practice.
Patients can question any doctor treating them about their medical indemnity insurance. Whilst clearly there is a limit to what information a doctor might be expected to provide to a patient, they should give unequivocal assurance that they have adequate and appropriate cover in place.
Type of Cover
The cover required differs depending on whether the work the healthcare professional is engaged in is;
- wholly under a contract of employment with the NHS, a Health and Social Care Trust (HSC) or Health Board;
- from self-employment; or
- a mixture of contractual work and self-employment.
Health care practitioners working for an organisation like the NHS are very likely to have indemnity cover through a clinical negligence scheme. Since 1990 the NHS has provided this type of cover for those working in hospitals or in community care. In England this has been through the clinical negligence scheme. In Wales, cover is through the Risk Pool Service. Provision in Scotland is via Clinical Negligence and other risk indemnity schemes. The Department of Health, Social Security and Public Safety provides cover in Northern Ireland.
The cover provided under these schemes is for medical negligence defined as;
- neglect or harm suffered by a patient receiving established treatment or unusual treatment which a healthcare professional judges appropriate;
- a healthy person volunteering to undergo a treatment or procedure;
- (in both cases this is irrespective of whether those administering the procedure or treatment follows the proper guidance).
- The cost of defending or settling a claim, including the legal costs of both parties;
- compensation in the form of damages as the court directs,either as a one-off payment or a structured settlement.
It does not cover claims arising from medico-legal work like providing written reports and assessments to insurance companies, the court,other tribunals or hearings. Neither does it cover the cost of defending a healthcare practitioner on the provision of care outside the contract of employment, like stopping to help at the scene of an accident.
Specific categories of cover: General Practitioners
Whether working in their own practice, as a practice partner or employed by a practice, GPs are responsible for arranging their own adequate and appropriate medical indemnity insurance to cover both clinical practice and medico-legal work.
Locums working under contract to the NHS or a HSC Trust are likely to be covered by the indemnity scheme of the employing organisation. However, this may be insufficient, particularly when the duties include medico-legal work when additional cover may be required. Those working as locums should take advice from their Medical Defence Organisation or a commercial insurer so that they can ensure they take out the necessary cover.
Doctors doing work for NHS or HSC
Doctor’s undertaking some work under a NHS or HSC contract are probably covered under that organisation’s medical negligence scheme in respect of the work done under contract. However, like locums, they will nee extra cover for other work, including medico-legal cover for all their work.
Doctors working on medico-legal work only
Doctors who work in a capacity solely related to medico-legal work must be licensed to practice and will need appropriate indemnity cover.
Doctors from abroad undertaking temporary private work in the UK.
A doctor from abroad may be covered under medical indemnity insurance taken out in another country. They should make sure that the provisions include work done in the UK and that the policy is of enough value to cover any potential financial claim. If they do not hold such insurance or the insurance they do hold is not adequate and appropriate, they should take out such a policy.
Doctors who no longer practice or provide health care services may still find themselves the subject of a malpractice or negligence claim for work they did before retiring. The longer the doctor has been retired the less likely it is that a claim will be made and this is reflected in the value of the cover and is why the type of medical indemnity insurance taken out by retired doctors is called run-off insurance. Doctors who are in the process of retiring should seek advice.
Good Samaritan acts outside work
Medical Indemnity Insurance is needed for work done under a contract of employment or as part of self-employment. Good Samaritan acts fall outside the parameters of insurance cover connected to work. Health care practitioners should speak to their professional bodies, a Medical Defence Organisation or a commercial insurer about the potential consequences that could arise from performing a good Samaritan act.
Providing medical care on a voluntary basis
Even though a person is providing medical services voluntarily and without charge to for example their local football or rugby club, they need insurance cover, particularly as the person is unlikely to be included in any insurance the club holds. People in this position should check with insurers.
Most nurses and midwives work under contract to the NHS, HSC or a private provider and are likely to be covered for medical indemnity through the scheme provided by the employing organisation. Nurses who also undertake some self-employed work will need additional cover for these duties. This may be provided as part of their membership of a professional body or trade union. Alternatively they should take out provision through a commercial provider.
Pharmacists, Osteopaths and other healthcare practitioners
All of these need adequate and appropriate cover for medical indemnity. As with the other professionals discussed above, if they are under a contract of employment to a health care provider, it is most likely they will be covered for negligence under that scheme. However, they should make sure by seeking advice from their own professional bodies, medical defence organisations or commercial insurer that they are adequately covered.
A Final Word
Every day surgeons, doctors and other healthcare professional perform marvellous feats including saving lives. However, there are few other types of employment where making a small mistake can carry the most serious consequences. This is why it is imperative that anyone working in this field takes time to talk to professionals about their medical indemnity cover.
The medical profession rightly has a terrific reputation for the lives it saves and the excellent services provided by its dedicated individuals. However, as with any profession there are many cases where things have gone awry, often with devastating (or unintentionally hilarious) consequences. In this article we take a look at some of the wilder blunders that doctors, surgeons and colleagues have been responsible for.
Not a leg to stand on
It's perhaps the greatest fear of anyone undertaking surgery - as you go under the knife, you naturally wonder whether the doctors will get everything right. Poor Willie King, a 52 year old American, had his worst fears confirmed. He was forced to have a leg amputated in 1995 due to the onset of disease. He woke to discover that the surgeon had in fact taken off the wrong leg! The catalogue of mistakes began when the diseased leg was wrongly identified in the hospital administration system, but you"d have thought somebody would have spotted the error during operation prep. As it turned out, King needed both legs removed eventually anyway but the mistake cost the surgeon, Dr Sanchez, a steep fine, a large compensation payment, and suspension of his medical licence.
Make the pain go away
Another logical fear for many surgery patients is to wake up during the procedure, but Sherman Sizemore experienced an even worse phenomenon - not being put to sleep properly to begin with and having to watch his surgery start. For 16 agonising minutes Sizemore was unable to communicate with the doctors and was only put out of his misery when general anaesthetic was finally administered. The recurring nightmare of this experience led Sizemore to commit suicide a fortnight later.
An unlikely addition
Something that happens rather more often than it ought to is the phenomenon of surgical instruments being left in a body following an operation. IN many cases these can be tiny fragments of tools or unusual artefacts, but in the case of Don Church, a 13 inch retractor was left inside his abdomen. Fortunately surgeons realised their mistake and removed the retractor a short time later, but - embarrassingly - this was the fifth such recorded case at Seattle's University of Washington Medical Center in just 5 years. Why do these things always seem to happen in the USA?
Knowing your left from your right
Many folks can get mixed up with their left and right, but you"d expect surgeons to know the difference. A Rhode Island hospital gained notoriety in 2007 when holes were drilled into the wrong side of patients" skulls in no fewer than THREE separate incidents. Fortunately none proved fatal, but it was a staggering series of mistakes.
Related blunders that have received widespread attention include cases where the wrong testicle has been removed, unnecessary mastectomies, and surgeons removing the wrong organs.
Our baby's not what we expected ...
Mix-ups at the fertility clinic may be more common than we know, but in one well known case a New York couple were left shocked when their child's skin colour was a noticeably darker shade than either of its parents. Tests confirmed that the Thomas Andrews, who had donated his sperm for the procedure, was indeed NOT the baby's biological father, to the great distress of the new parents. Andrews and his wife naturally sued for damages, but, hearteningly, chose to raise the child as their own regardless.
What are you doing with my patient?
67 year old Joan Morris experienced the trauma of open heart surgery when she was inadvertently put in the wrong hospital ward. After (wrongly) undergoing tests on her heart, she was scheduled to be discharged but was then placed in the hospital bed belonging to another patient. It was only an hour into the heart surgery procedure when the mistake was noted, prompting Morris" doctor to phone the operating room and get her out of there! Fortunately she survived the procedure with no physical damage, despite the risks inherent in heart surgery.
Would it happen in Wayne's World?
Dana Carvey, perhaps best known for his appearances on Saturday Night Live and Wayne's World, also experienced the trauma of a serious medical mistake. Carvey had a double bypass operation, after which it turned out that the surgeon had bypassed the wrong artery, leaving Carvey's condition effectively untreated. Carvey sued to the tune of over 7 million dollars and was forced to undergo another procedure to clear the problem.
Is it getting worse?
In May 2013, a shocking BBC report pinpointed an astonishing catalogue of mistakes affecting more than 750 UK hospital patients in the period 2009-2012. These included foreign objects left inside the body, fitting of incorrect implants or prosthetic limbs, and more than 200 cases where surgery on the wrong body part had taken place. NHS England suggested that around 1 in 20,000 patients could expect some error in their surgery; although the odds are slim, the costs - to both the patients and those treating them - can be enormous.