Medical indemnity 101
As a student doctor you will be aware of the concept of medical indemnity, and may already be a member of one of the UK’s medical indemnity providers, who all offer various benefits including advice lines, learning materials and student discounts.
Here, Dr Simon Watkin, Consultant Physician, Director of Quality at Liverpool School of Medicine and Vice Chairman of the Medical Defence Union, sums up the principles of medical indemnity, the role of medical indemnity providers, as well as your responsibility to have proper medical indemnity in place as a future doctor.
Liverpool ties
I was a student doctor in Liverpool from 1977 until 1983. I saw my very first ‘clinical case’ as an 18-year-old in a teaching room adjacent to a ward in the Old Royal Liverpool Hospital just behind what is now Cedar House. I remember it well. An elderly lady who was particularly tired and pale. We were asked what we thought might be wrong. Nobody knew. The patient’s haemoglobin was four, she was severely anaemic.
The clinical method of history taking and physical examination I was taught in Liverpool is the one I have always used.
Clinical training at the Royal Liverpool and Broadgreen Hospitals was followed by a Clinical Research Fellowship at Clatterbridge Hospital. After that came a consultant posting in Norwich for 15 years in general and respiratory medicine with a special interest in HIV and TB. A move to Scotland in 2008 to take up a second consultant post led to a role for the Scottish Government Acute Care Performance Team.
Ten years ago, I was given the opportunity to spend some time working with the Medical Defence Union. What began as a role providing professional advice in matters of alleged negligence and professional misconduct developed into a non-executive director position on the MDU Board, on which I have now been Vice Chairman for five years.
Retirement from my clinical role in 2020, co-incidentally one month before the pandemic, was followed by an unexpected opportunity as Director of Quality for the School.
Returning full circle after 45 years to the place I learned to be a good doctor has been a rare privilege.
The principles of medical negligence
Any Claimant in a medical negligence case must establish three important things. Firstly, that the doctor owed a ‘duty of care’ to that person.
For example, you are the patient’s GP and saw the patient for a consultation, which was later criticised as being negligent in some way, or you were the patient’s surgeon and there was a complication allegedly due to your negligence in the way the surgery was performed.
A duty of care is comprised of:
- Taking a proper history
- Investigating the patient’s symptoms and complaints properly
- Making proper differential diagnoses
- Making any necessary referrals to specialists
- Initiating action to take all reasonable steps to procure the health of the patient
- Providing a reasonable course of treatment
- Following up with the patient afterwards if that is reasonably necessary
Secondly, the Claimant must establish that there was a breach of that duty. Thirdly, the Claimant must show that they suffered injury or avoidable harm significant enough to initiate proceedings for compensation and that, but for the breach, the injury or harm would not have occurred (causation).
The most common causes of medical error which lead to negligence claims are:
- Misdiagnosing or failing to diagnose the patient’s condition
- Prescribing the wrong medication
- Not providing sufficient information of the risks of an operation
- Making an error during surgery
Medical indemnity providers
There are three main medical indemnity providers in the UK. These are the Medical Defence Union, the Medical Protection Society (MPS) and the Medical and Dental Defence Union of Scotland (MDDUS).
The MDU, for example, has around 98,000 active medically qualified members representing approximately 50% of UK practicing doctors, and it has 47,000 student doctor members. There are a number of other organisations, mostly insurance companies who provide cover for smaller numbers of UK doctors.
One of the main things which distinguishes the larger medical defence organisations (MDOs) from the rest is that they are owned by their members rather than shareholders. Members pay an annual subscription, and these funds are used to run the company and, most importantly, to always keep sufficient resources available to fund clinical negligence compensation claims and cover legal costs for these claims and advisory matters.
An increasing proportion of doctors, including most GP trainees in England, for example, will have cover provided by arrangements between an NHS employer and an indemnity provider. If as a doctor you undertake any private practice, this will require you to personally ensure you have appropriate cover in place.
As a student doctor you are not required to arrange medical indemnity in respect of clinical negligence as you will be protected by other means.
However, joining an MDO as a student does provide other benefits such as general advice, educational events, and other resources.
Many student doctors are members of more than one MDO while they are studying. Once you qualify it is advisable to choose one MDO. Subscriptions are usually paid annually so you can always choose to switch MDO at a later date, and your subscriptions will be a professional expense that can be set against tax.
Medical Indemnity coverage
The GMC requires doctors to have appropriate medical indemnity cover in place. In other words, doctors must personally check that the cover they have is appropriate for the work they do, and that any work not covered by the NHS is covered by another arrangement.
If you become an NHS GP or NHS hospital doctor you will have medical indemnity provided by the state indemnity schemes, expanded to include GPs in 2019. Bear in mind that the NHS in covering compensation claims for alleged negligent care does not cover anything resulting from referral to the GMC, for example. For these matters an MDO is strongly advisable.
Once you graduate, you will be subject to professional regulation by the GMC. An MDO will provide the advice and support necessary if you are reported to the GMC in relation to aspects of your clinical care.
An MDO will also generally provide comprehensive advisory services for all matters arising from the care of patients, including complaints, inquests, and Ombudsman investigations. No MDO will provide assistance or cover for activities proven to be criminal.
This year alone, the costs to the NHS of medical negligence claims will top £2 billion.
Yet, there is no evidence that a deterioration in medical standards is fuelling this ever-increasing figure. ‘Claims inflation’ occurs as the cost of compensation rises and as legal and other expenditure are subject to inflation.
The calculation of compensation for a claimant who succeeds in proving medical negligence has occurred and who requires ongoing care as a result, is on the basis that the care must be provided from the private sector, whereas in reality that care is often provided by the NHS and social care. This means that compensation claims can run into millions and even tens of millions of pounds for Claimants with lifelong care needs.
Key takeaways
- Student doctors are welcome to join any Medical Defence Organisation (MDO), all of which provide a range of services for student members.
- As a student, you would not be covered for legal assistance relating to academic progress failures or to any proven criminal activity.
- The big three UK MDOs all provide high quality services to their members, including medico-legal advice.
- All NHS GP’s (since 2019) and NHS Hospital doctors are protected by the NHS indemnity scheme and NHS Resolution
- The GMC requires all doctors to have appropriate medical indemnity cover in place and it is your responsibility to check that all your work is properly covered.
- When you become a doctor, should you receive a letter of claim regarding clinical care not covered by the NHS, or a letter from the GMC, you should contact your MDO before responding.
- Review your cover every time it is due for renewal or when your circumstances change and do not leave gaps in your cover period if you are actively working.
- Doctors who do not have the correct indemnity cover in place may become personally responsible for settling a compensation claim, and will be in breach of the GMC’s requirements.
Visit the websites of the Medical Defence Union (MDU), the Medical Protection Society (MPS) and the Medical and Dental Defence Union of Scotland (MDDUS) to learn more about medical indemnity and the additional services these organisations provide.
This article is non-promotional. The information applies to medical indemnity in general. The author’s comments have not been vetted or approved by the MDU and are not attributable to the MDU.