The concept of medical negligence is certainly not new and can be traced back to pre-Roman times. In the UK, under common law, medical negligence is considered as a tort, this is a civil wrong that causes a claimant to suffer loss or harm resulting in legal liability for the person who commits the tortious act.
Any individual or company that provides a service within the healthcare industry is at risk of being sued by a dis-satisfied patient. Whether a treatment goes wrong or the patient alleges that treatment has gone wrong, there will often be a claim made for compensation.
In the UK during the late 19th century medical defence organisations started to evolve to provide legal support should their members clinical competence be questioned. The first organisation of this type was the Medical Defence Union established in 1885, this was closely followed by the Medical Protection Society in 1892. It is important to note that these organisations are not insurance companies and are subscription based. Any indemnities provided are discretionary.
Clinical Negligence Schemes
Medical professionals that are working for the NHS are covered by Clinical Negligence Scheme for Trusts (CNST). This scheme is operated by NHS Resolution and covers clinical negligence claims for incidents occurring on or after 1 April 1995. Prior to this time claims were funded by the Department of Health and Social Care under a scheme known as Existing Liabilities Scheme (ELS).
As recently as April this year a new scheme has come in to place which is the Clinical Negligence Scheme for General Practice (CNSGP), this covers clinical negligence claims for incidents occurring in general practice on, or after, 1 April 2019. There is some debate as to some gaps in this state backed indemnity and whether GP’s should subscribe to a medical defence organisation or have their own medical malpractice insurance in place.
Medical Malpractice Insurance
Medical professionals that are working in a private capacity will either need to be a member of a medical defence union or have their own medical malpractice insurance. Organisations that are providing medical services, such as private clinics, will also need to protect themselves in case they are held liable for the actions of the medical professionals working for them. Claims of this nature where an entity is held vicariously liable are becoming more prevalent and organisations need to certainly consider medical malpractice insurance as a contingency cover.
Straight forward professional indemnity insurance will not normally suffice when it comes to medical professionals as professional indemnity insurance is intended to cover financial loss. The risks associated with medical malpractice cover are, bodily injury including, death, disease, sickness, emotional distress, mental anguish and mental stress.
In some scenarios it may be possible to have a “treatment extension” added to a public liability policy. This can work for some of the minor cosmetic procedures often associated with beauty salons. The definition of bodily injury is likely to be restricted to death, bodily injury, illness or disease.
For more information about medical malpractice insurance, please contact Tony Gibbs on 0118 9165485 or complete our enquiry form.