How to spot a case where you are vulnerable & how insurers are involved

This is the second part in a series of articles considering the defensibility of medical professionals in
today’s litigious world.

In Part 1 we looked at the positions of the respective parties and we offered some thoughts about
how the medical professional can best protect himself, given the various parties and their agendas.
We concluded that the best defensive outcomes arise from early recognition of problem cases.
Great; but what does that mean?

To set some boundaries: with a few infamous exceptions, medical professionals do not set out to
harm patients. Having said that, the pleasant patient who wants a procedure carried out, will quickly
turn if they think something is wrong. We all know this… In this part of our series, we concentrate on
cases where you or the patient have clinical concerns. We exclude cases of dissatisfaction over
hospital accommodation, food or the like. That is a topic in itself for a different day.

We need to focus on your medical concerns or those of your patient on one hand and your
obligations under the insurance policy on the other. What follows is a framework to balance clinical
concerns and how these are addressed, whilst not threatening your position with insurers. The
treatment responsibility remains with you, whether it be your concern that “something is not quite
right” or your need to respond to a specific complaint or perhaps a request to disclose a patient’s
medical records to them or their Solicitors.

I think it will be helpful to reflect upon the position under the policy, insurers behaviours and an
approach to balance what might appear to be competing interests:

The position under the Policy 

The policy conditions require that you report all circumstances that may give rise to a claim. 
A typical wording is as follows:

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.

 You might think that there is scope for negotiation with insurers given the obligation is
qualified in that "...in the opinion of the insured...".  In reality, this is not the case as if a set
of circumstances develops into a claim, insurers will be very quick to point out that the
circumstances provided clear concerns that a claim will be forthcoming, and there it is!
Given that the onus is entirely on you, Courts have become more sympathetic to insureds
but not in a consistent way and not in a way that makes commercial sense.
Insurers Behaviours - the way in which insurers handle claims  
 Here is a typical claims management condition under the policy:

No admission, offer, promise, waiver of rights of recovery, payment or indemnity shall be
made or given by or on behalf of the Insured without the written consent of the Insurer who
shall be entitled to take over and conduct in the name of the Insured the defence or
settlement of any Claim or to prosecute in the name of the Insured for their own benefit any
claim for indemnity or damages or otherwise and shall have full discretion in the conduct of
any proceedings and in the settlement of any Claim save as hereinafter provided in
Conditions (2) and (6). If the Insured admits, offers, promises or waives rights of recovery
without the written consent of the Insurer and in consequence the Insurer suffers prejudice
then the amount of indemnity shall be reduced by the amount by which the loss or damage
has been increased because of such failure. 

Conditions (2) and (6) are not relevant for present purposes.  I mention all of this to
illustrate how insurers not only want everything their way but have the means to broadly
achieve it. 

 So, what is all the fuss about?

 The anxiety that drives all of this behaviour is an uncomfortable truth that if a claim
attaches it will almost certainly cost more than that year's premium (and quite possibly all
the premium paid); so, the gearing of all this is highly leveraged against insurers.  The
challenge is therefore to report cases in such a way that will not leave you exposed to
circumstances where you are left in the cold, whilst at the same time providing sufficient
information to allow insurers to protect your position and not act detrimentally to your
reputation and future insurance cover and cost.

To be continued….


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