The single most important purchase for any doctor is their professional indemnity. No amount of governance or risk mitigation can, or will, prevent errors or omissions from occurring. Therefore, the most effective risk mitigation exercise any doctor can undertake is to be certain that their indemnity is fit for purpose and that it will (not ‘might’) respond to the full and declared scope of their practice. Indemnity is the absolute and last line of defence and estate preservation for any doctor. It is there to respond to any circumstance, whether alleged negligence or a GMC inquiry.
The risks of uncertainty
A doctor who is uncertain about the scope of their indemnity cover is not only failing to manage their own risk but may, potentially, also be in breach of GMC statute. For avoidance of doubt, the ISO 31000 Risk Management Definition of uncertainty is
“a state of being that involves a deficiency of information and leads to inadequate or incomplete knowledge or understanding.”
In the context of risk management, uncertainty exists whenever knowledge or understanding of an event, consequence, or likelihood is inadequate or incomplete.
Whilst it may be impossible to eliminate risk, it is possible to eliminate uncertainty by obtaining full information and improving understanding of your risks and the indemnity you choose to protect those risks, past and present.
Setting the bar on standards, The Faculty of Sport & Exercise Medicine (FSEM) make understanding your indemnity an overriding duty or principle of their professional code. Not dissimilar to the GMC’s ‘Good Medical Practice’, the FSEM (UK) Professional Code uses the terms; ‘you must’ as an overriding duty or principle and; ‘you should’ as an explanation of how you will meet that principle or when there are factors outside your control, on how you should proceed.
The FSEM Professional code Item 1.71. Knowledge, skills and performance states:
“You must ensure that you have adequate indemnity protection against damages, claimant’s costs and defence costs relating to a claim brought by a patient’s employer, club, agent, sponsor or event organiser in relation to alleged negligent treatment of a patient. Members and Fellows should discuss indemnity options with their employer and medical defence organisation. Indemnity insurance may only cover the Doctor for claims made by the patient, and not by their club, agent, sponsor or other.”
SEMPRIS was established in 2010 specifically to provide doctors whose private practice includes the treatment of professional sports persons with dedicated indemnity to protect against the risks posed by professional sport. It remains the only professional medical indemnity provider to guarantee cover for all work with professional sport including, uniquely, protection against damages, claimant’s costs and defence costs relating to a claim brought by a patient’s employer, club, agent, sponsor or event organiser (3rd party) in relation to alleged negligent treatment of a patient.
Consequences and impact of COVID on indemnity selection
Notwithstanding the acute concern for public health and safety, COVID-19 has created considerable personal and financial hurdles for doctors with private practices. The severe disruption and resultant decline in private practice following the original lockdown understandably prompted many doctors to review their practice activity, costs and expenses, including indemnity.
Under these circumstances, cost alone can suddenly become the pinch point driving a decision to find cheaper, if not necessarily appropriate or equivalent, alternative indemnity. SEMPRIS have spent considerable time during the last 20 months helping to rectify the consequences of decisions taken without advice to select alternative, cheaper indemnity.
The comprehensive indemnity, professional sport cover, world-wide limits, and third party cover we offer dictate that ours is unlikely to be the cheapest available. But no matter what a salesperson might say or promise, SEMPRIS are the only provider that indemnity underwriters are willing or able to write professional sport and third party indemnity cover for.
Mitigating this risk
The aphorism that all that glitters is not gold certainly holds good in the world of medical indemnity. The stakes are simply too high to base decisions on price alone without scrutinising the promises and assurances of the salesperson. Requesting sight of the policy wording and sharing it with us before signing any agreement is good, safe practice. Questions and requests for information—and responses received from—the salesperson should always be made via e-mail to provide an evidence trail, should it subsequently be required.
If your practice circumstances are changing, or if you are considering moving your indemnity to an alternative provider, we would encourage you to discuss this with us first. If you feel that is not appropriate, we strongly recommend that you ask the following questions of any potential, alternative (or current, if you are uncertain) indemnifier:
- Is the indemnity contractual ‘Claims Made’ or discretionary ‘Occurrence’ based?
- Will it assume the same retroactive date as your existing indemnity?
- Will you cover work with professional athletes?
- Will you cover third party or subrogated claims?
1. Is the indemnity provided on a contractual or discretionary basis?
Contractual or insured medical indemnity is guaranteed, regulated cover within the explicit, detailed terms of the policy, and with clear rights of recourse in the event of complaint. Discretionary indemnity, provided by MDU, MPS and MDDUS is unregulated, does not provide you with detailed terms of cover, and there is no guarantee that it will support you in the defence and settlement of a claim against you. Your only form of recourse against a decision not to support you is via a Judicial Review.
2. Will you honour my retroactive date?
Professional indemnity such as SEMPRIS, is written on a ‘Claims Made’ basis (providing cover for claims which are notified during the term of the policy), and requires continuous Claims Made cover to be maintained to preserve your retroactive date (the date your Claims Made indemnity first started). You should check with any indemnifier that they will provide you with the same retroactive date as your expiring policy. This is common practice and should not be a problem, but you should seek written confirmation from the new indemnifier. Your current certificate of cover will show your current retroactive date.
3. Will you cover work with professional athletes including retroactive cover for prior work?
In an increasingly competitive market, a verbal assurance does not offer sufficient protection. We would strongly advise that you request a copy of the policy wording, noting any exclusions. Make sure, for the purpose of both retroactive cover and for cover going forward, that your insurer provides indemnity protection for treating all professional sportspeople (including, if appropriate, Premiership footballers). Check whether there are any compulsory excesses in respect of claims arising (including retroactive claims) from the treatment of professional sportspeople (it is common, for example, for work with Premiership footballers to be excluded, or for such claims to carry a weighty excess).
4. Will you cover third party claims including subrogated claims?
You should ensure that the indemnity covers you against damages, claimant’s costs and defence costs relating to a claim brought by a sportsperson’s employer, club, agent, sponsor or event organiser (third party) in relation to alleged negligent treatment of a patient. Ensure that the policy will cover you for breach of contract in circumstances such as pre-signing transfer medicals undertaken for clubs involving a commercial contract but no patient. Finally, check that the indemnity will cover you against subrogation and subrogated claims. Subrogation is the principle under which an insurer that has paid the loss under an insurance policy is entitled to take on all the rights and remedies belonging to the insured against a third party with respect to any injuries or breaches covered by the policy
The decision to move indemnity providers should not be a cause of embarrassment or reason not to engage with your existing indemnifier for advice. We fully understand and recognise the position of SEMPRIS in the marketplace, and acknowledge that circumstances and needs change. However, poor or inappropriate advice has the potential to undermine the long-term safety and security of our members, their families and estates. Our core values drive us to always do our best for our members and the wider sport industry, and we would be failing if we did not promote clarity, understanding and the risks of selecting the wrong indemnity cover.
In an extraordinarily difficult time for independent practice, the degree of uncertainty and anxiety on many fronts has been unprecedented. Trust and confidence in the advice, support or assurance you are given has never been more vital, so please do not hesitate to contact us with any query or concern you may have with your indemnity.More Articles
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