We understand that when a client/patient complains about the outcome of a treatment or therapy, it can cause your stomach to flip and your heart to race – so what should you do when this happens?
Simply put – you call us!
The more detailed answer is that there are two different aspects to consider when a claim arises:
- The formal stuff that insurance contracts require – these requirements are called ‘Conditions Precedent’ – this means you (the insured) must adhere to these conditions in order to get the insurer engaged in supporting the claim. There are two main types of policy condition:
- The General Policy Conditions that apply to every policyholder in all circumstances and
- There are Specific Conditions dependent upon the treatment giving rise to the claim.
- Then there is the more human side of a claim. These claims are by nature quite stressful and worrying. It is hard not to take these claims personally. Plus in this time of social media, you may be concerned about the implications of a claim on your reputation and the wellbeing of any employees involved. You may also consider the impact on your insurance cost in the future.
These two aspects are not mutually exclusive and work together very well most of the time, giving you support and guidance throughout the claim process.
The most important message of all is to get in touch with us when you receive any indication of a potential claim from a client or patient and talk through the situation with us. We can then provide the advice you need before you respond to your client.
For those who are interested in reading more about the formal contract stuff, the following section considers the policy conditions. Most Medical Malpractice Insurance policies offer advice, called conditions, which is wrapped up in legal language, as you would expect from a binding contract. These conditions have emerged over decades of experience and case law and need to be complied with for a claim to be supported by an insurer.
As mentioned above, there are general and specific conditions.
General conditions, in summary, state that your insurer wants to know as soon as practically possible that a claim may be made against you. They want you to provide all necessary support and documentation to help them defend you and to do this, you must maintain detailed client/patient records.
Importantly, you must not admit any liability to your client, whether given explicitly or implied. This is because you might prejudice the insurer’s position and stop them from providing a defence to the claim which they might otherwise have been able to do. You must also allow the insurer to take over the claim management. Indeed, this is of benefit to you as it takes the burden off your shoulders and places onto the experts who deal with these claims day in and day out.
Let’s take a look at a typical example of the notable general policy conditions – there are others but we’ll leave you to read your policy if you require more information:
GENERAL CLAIMS CONDITIONS
“It is a condition precedent to the right of the insured to be indemnified under this policy that the insured shall as soon as possible and, in any event within thirty (30) days of receipt or before the end of the period of insurance, whichever is earlier, give written notice to the insurer of:
(a) any claim first made against the insured during the period of insurance;
(b) any circumstance(s) which may give rise to a claim;
(c) any official investigation, examination, inquiry or other proceedings, coroner’s inquest, prosecution or disciplinary proceedings first notified to the insured during the period of insurance; and
(d) any data breach event.
Notice of a claim, circumstance or data breach event shall be made in line with the Claims and Complaints section … of this policy, and full details of all material facts of which the insured is aware shall be provided, including:
(i) the date, time and place of the claim, circumstance or event;
(ii) a detailed description of what happened;
(iii) the name and address of the injured party(ies);
(iv) the names and addresses of all witnesses; and
(v) copies of any demand, notice or legal papers received in connection with the claim, circumstance or event.
Insurers agree that any circumstance that may give rise to a claim, provided it has been notified to them in accordance with the above paragraphs, and which subsequently gives rise to a claim after expiry of this policy shall be deemed to be a claim first made during the period of insurance.
Conduct of Claims
The insured shall, at all times, provide such information, assistance, signed statements or depositions as the insurer or their appointed representatives may require to conduct the investigation, defence or settlement of any claim or circumstance. The insured shall, at all times, assist in the defence of any claim without charge to the insurer.
The insured shall not settle any claim, incur any defence costs, make any admission, offer, promise or payment or assume any contractual obligation with respect to any claim without the insurer’s prior written consent. The insurer shall not be liable for any settlement, defence costs, admission, offer, promise or payment or assumed obligation to which it has not consented.
The insurer shall be entitled, but not obliged, to take over at any time and conduct in the name of the insured the defence or settlement of any claim or to prosecute in the name of the insured for its own benefit any proceedings. In any such matter, the insurer shall have sole discretion in the instruction of external solicitors and counsel and shall have sole discretion in the conduct of any proceedings.
“Record Keeping
The insured shall, at all times, maintain accurate and descriptive records of all professional services and equipment used in procedures which shall be available for inspection and use by the insurer or their duly appointed representatives. These records shall be retained for a period of at least ten (10) years from the date of treatment and, in the case of a minor, for a period of at least ten (10) years after that minor attains majority.”
Source: Omnyy Medical Malpractice Insurance Wording v3
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