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What does discretionary indemnity mean for you?

07 April 2021

We answer your common queries and bust some myths surrounding discretionary indemnity

The indemnity we offer to individual doctors is based on the principle of discretion. This means that we have the flexibility to provide assistance when new issues arise in healthcare (which may not have been known when an insurance policy is taken out). With experienced medicolegal consultants and specialist solicitors at the core of our team, we can use our judgment and insight to help members.

With more choice in professional protection than ever before, you need an organisation that goes further than anyone else to protect you and your interests, and we understand that you might have questions about your indemnity. Here, we answer some of the most common queries on what discretion means in practice.

Why is the flexibility of discretionary indemnity so important?

Clinical negligence is a specialist area of expertise and is very different to areas covered by traditional forms of insurance, such as car or household cover. It can be – and often is – several years between an incident taking place and the resulting claim emerging.

The medical industry is continually changing and is rarely straightforward; new challenges and issues constantly arise, some of which were inconceivable just a few years ago. Discretion means we can offer help in unusual circumstances or where a new problem appears. It's why we use people, not contracts, to make these decisions.

Our claims management team are based in-country and work for you, which means that you benefit from the expertise and combined wisdom of your peers: doctors and legal experts who know the healthcare system and your specific challenges.

We’re different in that we treat every case on its individual merit, and, because we are a discretionary organisation, our starting point is always 'how can we help?'

Why should I pay for membership when there's no formal guarantee of assistance?

Our discretionary approach to providing assistance isn't about being able to say no, it's about having the flexibility to look at how we can help.

In 2020, we opened nearly 3,000 new cases involving our medical members in South Africa1, including claims, complaints and regulatory matters. We help thousands of members every year with problems that arise from their professional practice and provide assistance with the vast majority of the cases. Only in very exceptional circumstances would we decline – for example, if a member was not in membership when the adverse incident occurred or had deliberately underpaid their subscription.

This is no different from an insurance company declining to assist in such circumstances.

Being discretionary doesn't mean there are no rules. We cannot, and would not, decline to assist you just because we felt like it – you have the Memorandum and Articles of Association as your agreement with us.

If I'm sued for a large sum, I've heard Medical Protection could turn their backs on me and refuse to help, as there's no written agreement to do so – is that right?

No – this is simply not true. We take our responsibilities to members extremely seriously and have never used discretion capriciously. We have never declined to assist a member purely because of cost implications.

By the end of 2019, the highest value claim that Medical Protection had settled on behalf of a South African member was over R41 million2 and we were assisting on individual cases each valued between R23 million and R73 million.3

If you have any further questions about discretion and what it means for you, please contact us.

1 based upon all cases opened on behalf of South Africa medical members 1 Jan – 31 Dec 2020
2  based upon all claims managed by Medical Protection in South Africa between 2010 and 2019
3 the estimated total for all defence costs, damages and claimant costs; figures as at 31 Dec 2019