During the first wave of the pandemic, GPs were acting as gatekeepers to prevent hospitals being inundated with patient admissions. Over time, they’ve changed the way their practices operate, with remote consultations becoming more the norm and many have volunteered in triage centres to manage the NHS’s response. All the while putting their own health at considerable risk.
How many times have they been told that “we’re in this together”? How many times have they actually felt that?
Facing the common enemy of Covid-19 might have united the public with the NHS earlier in the year but as we’ve settled into a world that has to live with this threat, niggles have appeared; compassion and empathy has subsided somewhat. The stress and pressure that they are feeling isn’t met with the same applause that it once was.
Litigation flood predicted
With insufficient medical resources and teams stretched to the limit, it may seem crass to even talk about clinical negligence and potentially being sued. However, many healthcare legal teams predict that there will be a flurry of cases of negligence resulting from this crisis.1
McKinsey Management Consultancy2 report that “We expect higher claim frequency in select claim segments such as Directors and Officers (D&O) and healthcare professional liability. As the pandemic progresses, increases in healthcare professional liability and medical malpractice claims may result from increased exposure to infection as well as capacity and equipment shortages in healthcare systems”.
Accusations of negligence will always feel unfair from a GP’s perspective but that doesn’t make them any less real. However, relying on state-backed indemnity as a ‘cover-all’ policy could be perilous, especially in terms of private work, which has always been outside of its scope. As good as the NHS protection is, it has its limits.
Gaps in state backed indemnity
MIAB, who provide bespoke insurance and advice to the medical sector, and partner with Lloyd & Whyte, explore the implications.
“Whilst the State backed indemnity scheme, launched over a year ago, is doing more and going further than many initially anticipated, there are limitations. It won’t cover private work, for example”, explains MIAB’s Director of Operations, Tristan Lennox-Gentle.
Some defence organisations have even proposed that there should be blanket immunity against legal action for doctors throughout the pandemic, as is the case in certain American states3, however many believe this is a step too far.
However from a legal perspective, clinicians need to be aware that if a patient happens to fall victim to negligence during these unprecedented times, irrespective of the fact it coincides with a pandemic, patients retain the right to be able to investigate this matter. If they can prove negligence caused them harm, they are entitled to legal redress, regardless of the circumstances.
People have short memories and may well put compensation ahead of compassion especially in light of the significant redundancies and economic hardship caused by Covid-19.
The cost of medical negligence in the NHS has climbed steeply in recent years. In 2018, NHS Resolution estimated the accumulated claims it was facing amounted to £83.4bn. 4
Patient care in crisis
It is a well-documented fact that many people with genuine health issues have put off attending hospitals or seeking early diagnosis from their GP. 5 There are concerns that people are not reporting symptoms of cancer for example. Furthermore, other areas of medicine, which are not directly treating Covid-19 related issues such as respiratory disease, are nevertheless impacted by the knock-on effect of resources being redeployed. The BMA 6 survey released in May backs up the concerns that doctors have over patient care.
Government indemnity extended
Due to the increased treatment risk and subsequent liability claims associated with clinical re-deployment, the government has confirmed, in law, that anyone asked to work for the NHS as a result of Covid-19 will be indemnified. This includes students, retired practitioners, volunteers and those being asked to do tasks they wouldn’t normally be doing. The existing law has been amended to provide increased protection.
So where does that leave Private practitioners?
The GMC says that doctors must have adequate insurance or indemnity in place so that patients are not disadvantaged if they make a claim. The clinical activities that the State Backed Indemnity doesn’t cover include private work, passport signings, private medicals, firearms reports, private inoculations (like yellow fever and similar), report writing for the Department of Health and the Department of Work & Pensions. In addition, Good Samaritan Acts and Data Protection defence claims are excluded, as are patient complaints, criminal investigations, inquests, fitness to practice, coroners’ cases and disciplinary proceedings. Work conducted on behalf of the Ministry of Defence is also not covered.
It’s important to note that Defence Organisations operate a model of discretion- using their own judgement to interpret any ambiguity. They operate using an article of association which means what is and isn’t covered is left to the discretion of the claim’s practitioner at the point of loss. Effectively they make their own rules on what they cover, and whether they will support a member’s claim. Whilst it is rare for a defence organisation to decline to support a claim, it nevertheless leads to uncertainty and a lack of clarity for their members.
It is also worth noting that currently the government scheme does not cover run-off cover, so anyone with a claims-paid or claims-made indemnity policy will require additional run-off medical cover for claims made perhaps in their retirement, relating to treatment undertaken whilst they were still practicing. Many claims, complaints, GMC investigations or coroner’s inquests occur years after the date that care was provided. In many cases, liability ends 3 years from an adult becoming aware of their mistreatment, 3 years from when a minor turns 18 or 3 years from recovery from mental illness, however under certain circumstances you could be liable for 15 years or more. Consequently run-off cover is advised for 21 years in most cases, although the decision to buy it is subject to the insured’s perception of risk. Does your cover allow for claims from past issues?
All of the elements above, can however be covered by a wrap-around policy, such as the one offered by MIAB. Their ‘Indemnity Essentials’, is a comprehensive policy providing protection for work not covered by the government state-backed indemnity scheme.
This policy is underwritten by ARAG, who cover the legal aspects and can provide advice and support at proceedings such as criminal defence or at a disciplinary hearing raised by a professional body such as the GMC or GDC or Primary Care Trust or an NHS Tribunal and it also includes regulatory discipline cover.
Specialist medical underwriters Beazley provide the indemnity clinical cover that is not covered by the state backed indemnity.
MIAB can assist with advice about new indemnity products as well as their range of other insurance products.
If you wish to discuss how you can protect your practice, please get in touch at:
2 MkInsey https://www.mckinsey.com/industries/financial-services/our-insights/how-north-american-claims-organizations-can-respond-to-the-coronavirus#
3 MDU April 20th 2020 https://www.themdu.com/press-centre/press-releases/mdu-calls-for-national-debate-over-protecting-nhs-from-covid-19-clinical-negligence-claims
4 NHS Resolution https://resolution.nhs.uk/
6 BMA Survey https://www.bma.org.uk/advice-and-support/covid-19/what-the-bma-is-doing/covid-19-analysing-the-impact-of-coronavirus-on-doctors
MIAB is a trading style of The Medical Insurance Advisory Bureau Ltd which is authorised and regulated by the Financial Conduct Authority under register number 586374. The Medical Insurance Advisory Bureau Ltd registered in England and Wales No. 7217140 Registered office: Affinity House, Bindon Road, Taunton, Somerset, TA2 6AA