Casebook Vol. 18 no. 1 - January 2010

On the case

Head of Medical Services (Edinburgh) Dr Rob Hendry introduces this issue’s round-up of case reports, which focus on claims arising years after an incident – and the benefits of MPS occurrence-based indemnity

One of the most striking features of clinical negligence litigation is the long passage of time between an alleged negligent act and an ensuing claim.

Because claims may be brought many years after the event, professional indemnity has traditionally been provided on an occurrence basis.

Put simply, occurrence-based indemnity can meet claims that arise from treatment carried out by a member, regardless of when the claim is brought, without the need for any further payment to be made. This may be long after you have changed indemnifiers, retired – or even after you have died.

The case report entitled "Age no barrier" illustrates the importance of occurrence-based indemnity, as although the doctor died before a claim was brought against him, as a result of an alleged delay in diagnosing a perforated appendix many years earlier, the fact that he was in membership at the time of the incident meant that MPS was able to respond to the claim. This was of great reassurance to his widow who had received the claim for damages.

Another case highlights the need for accurate record keeping and examination, as expert witnesses deemed the doctor’s actions indefensible in view of a lack of documentation, and failure to investigate symptoms further in light of repeat attendance. The claim was brought 20 years later.

The alternative to occurrence-based indemnity is claims-made cover – where a policy must be in force when a claim is reported. Claims from the past may have to be covered by the payment of an additional premium or run-off cover. If run-off cover is not taken out in these situations, the practitioner, their estate and patients with a retrospective claim will not be protected. This is in effect an additional cost and risk of insurance.

Generally speaking, it does not cover “prior acts”, ie, claims that arise from events that took place before the policy period. This is all very well for some types of cover, where an incident is reported to the indemnifier almost immediately, eg, car insurance, but is a much more complex matter for clinical negligence claims, with their inevitable time lag.

The enduring nature of occurrence-based indemnity is the reason we believe that this is the gold standard for professional indemnity; it is the simplest and safest means of ensuring that practitioners – and their patients – are not exposed to the risk of gaps in their indemnity arrangements.