This is the fourth part in a series of short articles designed to help medical practitioners manage their relationship with insurers. In previous articles we have looked at the framework within which we have to operate (policy reporting conditions) as well as identifying the circumstances that will require early management.

The important thing to bear in mind is that early investigation and preparation of cases in anticipation of claims arising does not have to be to the exclusion of reporting the right cases to insurers; it’s all a matter of timing.

In the first article in this series, we saw that the claimant controls the timetable in the sense he has control over whether and when a complaint or claim is pursued (subject to the Limitation Act, which can time out a case). However, nothing prevents the medical professional from investigating and preparing a case in anticipation. Indeed, sound medical practice encourages or demands this via adverse incident reporting and the like.

Imagine insurers as just another stakeholder in this process. There is an escalation of reporting in clinical risk management which can be instructive as to the type of case to report. A typical reporting condition bears re-stating:

"The Insured shall give immediate written notice (but in any event no later than 45 days after the Insured first became aware of such Claim, or Circumstance) to the Insurer of any Claim first made against the Insured (or any specific event or Circumstance that in the opinion of the Insured may give rise to a Claim made against the Insured) and which forms the subject of indemnity under this Policy. Every Claim, writ, summons or process and all documents relating to the Claim, event or Circumstance shall be forwarded to the Insurer immediately they are received by the Insured."

A collateral benefit of a robust adverse incident investigation is an early clinical view on merits of a case, should one be forthcoming. That will enable a worked-up case to go to insurers within the appropriate time.

I routinely handle the investigation of circumstances and deciding which cases to report. This approach should not lead to wild swings in the attitude of insurers, and we have several examples of this, to include premium reductions over the last 3 years.

So, what does a worked-up case look like? Well, whilst it sounds like a cliché, it is true that each case is different. However, from an insurance perspective, the following features will be addressed in sufficient detail to recognise the risks in the case. Risk is defined as the prospect of success of any case that is advanced, versus the costs of working the case up at that point.

Common features will include:

• A view on breach of duty to include a view from a relevant colleague (not a work colleague)
• A view on causation, again supported by an opinion from a colleague from an appropriate speciality, which may not be your own.
• A view on revision treatment with an idea on who might carry this out and at what cost. This may not be relevant for all cases, but where it is relevant a specific authority from insurers can be sought.
• A view on financial potential (damages and costs reserve). This is a routine part of any submission we make to insurers.
• A suggested action plan and an undertaking that the case will be followed up, subject to a watching brief or whatever else is appropriate.

A few additional comments are appropriate at this early stage:

1. You do not need to instruct Solicitors or a loss adjuster for this work. Insurers will exercise their right under the contract in this regard and it is rare they will simply adopt your instructions to a Solicitor etc.
2. You do not need to tie yourself in knots over the form of the reports and other information at this stage. The medical content of the file is much more important than the form of the information.
3. You know more about the medicine/clinical treatment or procedure than insurers or their agents. Critically, you also know the patient and will be the only person in the cast of characters to have met them.
4. 30 years of experience tells me that a well-prepared initial submission to insurers will be readily received, and you will have a voice as to future conduct. This is something we routinely do for clients.
5. Insurers will trade a well-prepared submission for time, if there is no particular time pressure, which is typically the case at an early stage.

To be continued…