Indemnity – understanding your options

Dr Rob Hendry, Medical Director at Medical Protection, outlines what medical practitioners need to consider
when choosing their clinical indemnity policy

Professional indemnity may not be a subject that doctors spend a lot of time thinking about, particularly when they have been coping with the pressures caused by the pandemic. Doctors often just want to know that protection will be available if and when something goes wrong. Those of you who rely on your State protection – otherwise known as the Clinical Indemnity Scheme (CIS) – may be unaware of its limitations. The CIS only covers 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, or if you are approached by the media for a press comment, you are on your own.

But if you are involved in a clinical negligence claim through your private work, you require separate indemnity which has to meet the Medical Council’s requirements. The Council requires doctors to have indemnity which meets the minimum levels set out on their website and will require evidence that the correct level of indemnity is in place. These requirements specify that all doctors need to ensure they would be protected against claims up to at least €10 million.

For some specialties this requirement is set even higher. For example, those working in obstetrics and gynaecology who have a limit of under €30 million written into their indemnity arrangement or insurance policy will not be considered adequately protected. Members of Medical Protection do not need to be concerned about such limits, however, as we provide access to indemnity without any such limitations. There are various factors to consider in order to ensure that you have protection that is right for you.

Medical Protection – the mutual model

A key consideration should be whether your indemnity or insurance provider is an organisation that is focused on your interests. 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 pay subscriptions and if they face a complaint, claim, regulatory investigation or any other matter, members have a right to request assistance.

With doctors facing significant financial pressures due to Covid-19, Medical Protection was able to pay the equivalent of two months’ subscription fees back to members last year. This is a clear example of the benefit of being with a mutual organisation that exists to protect your interests and not to make profit.

Types of indemnity

You also need to ensure that you have the type of protection that is right for you. For example, ‘occurrence-based’ or ‘claims-made’ are two very different products, and these terminologies can also be used to describe products that cover clinical negligence claims, as well as medico-legal support such as investigations (by Medical Council, gardaí ombudsman, etc) complaints, disciplinary processes and more.

Occurrence-based protection allows you to request assistance from your indemnity provider for incidents that occur during your membership period, regardless of when the resulting claim or complaint is made. This can be five, 10 or 20 years’ time – or even after you have left membership, retire or cease practice. A claims-made insurance policy allows you to request assistance for claims or complaints that arise from an adverse incident that occurs during your membership or policy period. However, these types of policies often require you to have been a customer at the time of the incident, and had continuous cover for the period between the incident occurring and the time you report the incident.

To be able to report an incident that you only became aware of after your claims-made policy has ended, you would need to either apply to purchase a run-off or ‘tail’ cover. Alternatively, if you are to continue to practise after ceasing your policy with your provider, you would need to have arrangements in place with your new provider that would allow you to report the incident to them.

Claims against doctors can be made several years after the clinical care was provided. A run-off period, which is less than this, may not offer protection in the event of a clinical negligence claim being made many years into the future.
With a claims-made insurance policy, if a doctor is not offered or is unable to purchase the necessary run-off cover when they wish to leave, that doctor has no protection in place if a claim later arises and the incident that gave rise to the claim was not reported in accordance with the terms of the policy.

With occurrence-based indemnity, any incident that arises from the time a doctor is with their indemnity provider – even if the complaint or claim is raised years later – is indemnified

A claims-made insurance policy may appear more affordable in the short-term. This is because the price does not protect against future risk in the same way as occurrence-based indemnity. Subscriptions with a claims-made insurance policy typically rise in steps, until the annual cost of the claims-made insurance policy levels off. There are also likely to be additional costs incurred upon ending the policy (such as retirement or ceasing practice), and when all these additional costs are considered, the overall cost for both types of indemnity is likely to be broadly similar over the course of a typical career.

With occurrence-based indemnity, any incident that arises from the time a doctor is with their indemnity provider – even if the complaint or claim is raised years later – is indemnified. Hence, there is no need to worry about the possible need to purchase additional protection if a doctor takes an extended break in practice, retires, or switches providers.

Service and campaigning for the profession

Medical Protection has a long history of providing an excellent quality of service, with experienced medico-legal consultants who are doctors specialised in legal medicine, case managers, and lawyers – many of whom are based in Ireland – available to advise, guide, and support members when they are facing the most stressful situations in their professional lives.

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. At Medical Protection there is a wide range of learning resources available free for members, including risk management and wellbeing strategies.

Besides Ireland, Medical Protection also has expertise in other jurisdictions which we can draw on and we actively campaign for regulatory and legal reforms that benefit members and the wider healthcare professions. Deciding what’s best for you Ultimately, the decision on whether to choose occurrence-based or claims-made protection rests on your individual circumstances. The indemnity provider that you opt for should be able to explain how they will protect you.

For more information, please visit medicalprotection.org/ireland