HSE doctors: Are you really protected?

Dr Rachel Birch, Medico-Legal Consultant at Medical Protection, illustrates the importance of having the right professional protection through a case study 

HSE doctors who rely on their State indemnity – otherwise known as the clinical indemnity scheme (CIS) – may be unaware of its limitations. The CIS only protects against clinical negligence claims in the public sector; if you receive a complaint from the Medical Council, are investigated by the gardaí or are subject to a disciplinary hearing, you are on your own. The CIS will not cover you for claims for any private work. 

According to the most recently published Medical Council Annual Report, there were 279 new complaints in 2020, involving in total 311 doctors. Despite the challenges presented by the Covid-19 pandemic, the Medical Council concluded 27 fitness to practise inquiries in 2020. 

Having representation at fitness to practise inquiries can cost a considerable amount of money. It may be difficult for you to self-fund your defence where you do not have adequate indemnity arrangements in place. 

What to look out for 

A key consideration should be whether your indemnity or insurance provider is an organisation that is focused on your interests. At Medical Protection, with our philosophy of supporting safe practice in medicine by helping to avert problems in the first place, we try to help reduce risks for our members with a wide range of learning resources. 

With more choice in professional protection than ever before, it may be tempting to consider new insurance entrants, which offer low pricing. Unfortunately, in the last decade, Ireland has seen such entrants exiting the market or limiting the service they provide and thereby leaving practitioners unprotected. 

Members of Medical Protection are part of an organisation, run for and owned by members; our focus is on protecting members’ careers and reputations, not generating profits. Members who are HSE doctors pay subscriptions and if they face a complaint, regulatory investigation or any other matter listed in the previous table, members have a right to request assistance. 

Besides, we actively campaign for regulatory and legal reforms that benefit members and the wider healthcare professions. 

Reputation management – a case study 

Dr K was working in the emergency department of a busy hospital on a demanding Saturday night when a patient, Mr O, arrived in a semi-conscious state. His medical notes revealed a history of alcohol abuse. History-taking was difficult as Mr O seemed very sleepy and incoherent, but the smell of alcohol was enough for Dr K to dismiss the patient’s symptoms as simply the effects of excessive alcohol consumption. 

Bloods were taken and sent to the laboratory, and an entry was made in the notes to follow up later. Dr K then took Mr O to a quiet corner to sleep it off and continued to attend to other patients. The next morning, Mr O was found dead. When Dr K had assumed Mr O was drunk, he had actually been ketoacidotic, meaning his death that night had been very likely preventable. 

According to the most recently published Medical Council Annual Report, there were 279 new complaints in 2020, involving in total 311 doctors 

Outcome 1: If Dr K had CIS indemnity only 

Dr K spoke to his employer, but they were not able to provide him with the support that he needed. By the time the hospital’s internal review commenced six months later, Mr O’s medical notes had gone missing. This left Dr K feeling extremely vulnerable, as he had no access to his contemporaneous notes to back up his actions. Given the timeframe, his recollection of events was unclear. 

As expected, the patient’s family brought a claim against the hospital. The hospital solicitors acting on behalf of the HSE requested a statement from Dr K, but, without the medical notes, he found it difficult to defend his actions. 

The family also made a complaint about Dr K to the Medical Council, who commenced an investigation. Dr K was not entitled to advice or support with this process through the CIS. 

The story attracted some media interest and once Dr K’s local community found out that he was being investigated by the Medical Council, he lost the trust of many of his patients. The damage to his reputation – and, potentially, his livelihood – was difficult to repair. 

Outcome 2: If Dr K had been a Medical Protection member 

When Dr K was told that Mr O had died, he immediately phoned Medical Protection’s 24-hour helpline for advice: 

• A medico-legal consultant recommended that Dr K write up a draft report of the circumstances leading to the patient’s death and asked him to forward this and a copy of Mr O’s anonymised medical notes (with permission from the hospital) to Medical Protection for review. 
• When the hospital’s internal review started, Medical Protection provided the investigatory team with a copy of the anonymised notes (even though the originals had subsequently gone missing) and the full report written by Dr K immediately after the event had occurred. 
• The CIS managed the claim on behalf of the hospital. Medical Protection reviewed the member’s draft report prior to submission. 
• A complaint to the Medical Council was still made by the family; however, Medical Protection guided Dr K through the process. Medical Protection instructed solicitors to represent Dr K and a meeting was arranged at their offices to go through the case with him. Thereafter, the solicitors drafted a letter on Dr K’s behalf to the Medical Council setting out his position. 
• Our press office was also on hand to help Dr K deal with the media intrusion: A statement was issued to the press. 
• Following the ordeal that Dr K went through, he could also access Medical Protection’s free confidential counselling service. 
• As Dr K is committed to learning and self-improvement, he attended a few free risk management webinars by Medical Protection. 

For more information, visit Medical Protection at medicalprotection.org/Ireland