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BASEM Congress 2013
‘How to look after the doctors
not just the patients’
Neil Redman
SEMPRIS
Understand your risks
“The implications of the decisions taken by traditional
MDOs to alter, apply terms or withdraw cover for
doctors treating ‘sports persons’ reach wider and
deeper than is currently recognised or understood
by the majority of those most affected”
JAMES CALDER, MD FRCS (Tr & Orth) FFSEM (UK)
SEMPRIS Member
Presentation objective
• To examine the key risks, liabilities and indemnity issues associated
with the treatment, reporting and medical assessment of
professional sportsmen and women.
• To encourage awareness and clarify understanding of the ability of
traditional Medical Defence Organisations (MDOs) to respond to
these risks, following changes to and withdrawal of, key elements of
their member’s indemnity cover.
• Introduced in 2010 solely in response to the introduction of
restrictive guidelines and the withdrawal of critical aspects of
indemnity cover by traditional MDOs for doctors treating professional
sportsmen and women.
• Developed and managed by Health Partners Europe Ltd in
conjunction with medico-legal specialists, TWG Resources Ltd and
Paragon International insurance brokers.
• The scheme is underwritten at Lloyd’s of London by Marketform,
Ren Re and Argo and has the protection of the FCA and Lloyd’s
Central Fund.
• Followed extensive research and advice from Doctors,
Lawyers, Sport Governing Bodies, Underwriters and Medico-Legal
specialists.
• Research included meetings with the MPS and the MDU, Premier
League and their respective legal advisers to establish:
(1)
Affect and extent of the MPS statement and impact of MDU
policy endorsement and likely impact on doctors and sport.
(2)
the suitability, wording and use of ‘Waiver Letters’ with clubs
and representative third parties.
Background
Where it all started - Michael Appleton’s Knee…
• Appleton (patient) sued El-Safty (surgeon) for negligently advising
him that reconstruction of a cruciate ligament was required, when
conservative management was indicated.
• Damages of approximately £1.5 million awarded to Appleton
• Appleton vs El-Safty - a clinical negligence claim (tort)
• West Bromwich Albion Football Club (WBA) vs El-Safty - claim for:
(1) breach of contract (an agreement intended to be legally binding
with consideration on both sides) and (2) negligence (tort)
WBA vs El-Safty
The outcome..
• WBA failed as no express or implied contract between WBA and ElSafty such that El-Safty owed a duty of care to WBA.
• Contract – an agreement expressed or implied intended to be legally
binding with consideration (money/services) on both sides.
WBA claim failed but …..
MPS Response - with effect from April 2008:
• The MPS will not provide indemnity for doctors who are employed
by, or contracted to, a Premiership Football Club.
Members should not:
• enter into a written or oral contract with an employer to treat
employees for reward and only accept referrals from other
healthcare professionals not from clubs directly
• address any professional fee notes to the patient not the employer
• review any existing relationship with an employer of a patient very
carefully
WBA claim failed but …..
MDU Response - policy endorsement June 2010:
•
The MDU will not indemnify members for any damages, claimants'
costs and/or defence costs which relate to a claim against them
by:
•
the employer, agent or sponsor of a sports person who is an
individual patient;
•
any club team or organisation for, with or under which a sports
person who is an individual patient plays a sport; or
•
the organiser or owner of any sporting event in or for which a
sports person who is an individual patient plays a sport
Whole disclosure and nothing but
the whole disclosure? - NO
Not highlighted or disclosed to members by MDU..
• “The endorsement will apply from a particular date (June 2010 –
May 2011) and so any claim made after that date will be subject to it,
regardless of when the treatment is conducted”- no retroactive cover
for a third Party claim for negligence.
• MDU will not respond to a subrogated claim against a member
following negligent treatment of a ‘sports person.
• MDU ‘Run-Off’ – offers indefinite indemnity but only on a
discretionary basis for claims made after retirement, death or
disability
So Do MDOs Want Your Sport Risk?
Insurers and indemnifiers do not withdraw or amend cover without very
good cause or reason. The MDOs decision to do so highlights;
1.
The very real threat represented by 3rd party claims from sport
2.
That they don’t want to carry or respond to this risk
3.
That the exclusion of risk from a very small section of the
membership is in the interests of the overall membership
4.
That by acting in unison under what is effectively a monopoly, they
believed there to be no alternative solution for their members
Subrogation
So what is a subrogated claim?
"The principle under which an insurer that has paid the loss under an
insurance policy is entitled to take on all the rights and remedies
belonging to the insured against a third party with respect to any
injuries or breaches covered by the policy.”
• The exposure / liability to a subrogated claim is not limited to clubs
(medical malpractice / loss of asset insurance / employers liability)
• Any third party contracted to provide services to a club – Imaging
Centre, Hospital, Cardiology screening centre/service – will defer to
the indemnity of the contracted doctor in the event of a claim against
it for negligence. MDU will not respond MPS unlikely to respond.
Avoiding contract
Contract scenarios
No express or implied contract between WBA and El-Safty such that El-
Safty owed a duty of care to WBA.
Be Aware of or Avoid
• Any direct arrangement, written or oral, with Club/Sports Body to
provide services for reward – EIS, Red Bull etc – vicarious liability
• Pre signing / transfer medicals / cardiac screening / reporting
• Routine screening programmes / reporting – Cardiac / MSK
• Invoices / fee notes addressed directly to Clubs/Sports Body
• Referrals received directly from non healthcare professionals at Clubs
Avoiding contract
Contract scenarios – providers
Be Aware of or Avoid
• Hospitals providing packaged services that include doctors fees
• Reported MSK imaging/screening
• Reported Cardiac testing/screeningService provided to a third party
contracted to provide medical services = potential subrogation
In summary
Will your indemnity respond?
• No cover for 3rd party claims – MDU/MPS
• No retroactive cover for 3rd party claims – MDU. Unlikely - MPS
• No cover for subrogated claims – MDU. Unlikely – MPS
• Restricted practise – avoid implied or actual contract
• No pre signing medicals / transfer medicals / screening / reporting
• No invoices / fee notes addressed directly to Clubs
• No referrals directly from non healthcare professionals at Clubs
• Increasing subscriptions and diminishing cover
• Uncertainty
The solution - SEMPRIS
Developed specifically in response to changes
from MDOs to cover all aspects of practice –
not just sports related work, including
professional issues not covered
by NHS indemnity.
The solution
The only UK indemnity scheme to provide cover for:
• Damages, claimants’ costs and / or defence costs relating to a claim
brought by a sport person’s employer, club, agent, sponsor or event
organiser in relation to alleged negligent treatment of a player.
• Subrogated claims.
• Pre-signing medical assessments undertaken directly for clubs.
• World-wide cover (inc USA & Canada by request)
• £10m cover for each claim and £20m in the annual aggregate.
• 10 Year fully insured ‘Run-Off’ included in subscription
Comprehensive cover
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Inquests and fatal accident inquiries
Criminal investigations arising out of professional practice
GMC investigations
Defamation
Public Liability
Medico-legal
Breach of professional confidentiality
Breach of Data Protection Act
Loss of documents
Good Samaritan Acts
Membership
• SEMPRIS is available to all GMC registered members (ex GP’s)
who treat professional sportsmen and women.
• Developed to cover all aspects of practice, not just sports related
work, including non-sport related independent practice and
professional issues not covered by NHS indemnity
• Membership currently includes but is not limited to; SEM Physicians,
Rheumatologists, Anesthetists, Radiologists, Cardiologists, GP’s
and Orthopaedic consultants
Subscription costs
• SEMPRIS membership excludes exposure to the high risk and high
claiming specialties that burden the subscriptions of lower risk
specialties within the pooled risk of the MDOs – No cross subsidy
• 78% of enquiries who obtain a quotation transfer to SEMPRIS
• The sole objective in introducing SEMPRIS was to provide effective,
appropriate cover with competitive, sustainable subscriptions
• Entering 4th year, underlying premiums have not risen since
inception and claims experience including 12 year retroactive cover
for transferring MDU members is excellent
• 10 Year, £10m fully insured ‘Run-Off’ included in subscription
(contrary to mischievous misinformation!)
Talk to us – we understand
your practice and its risks
Understand and examine the risks and liabilities of your
practice. Don’t put blind faith in your indemnity provider
to respond to the risks. Insurers and indemnity providers
do not alter, apply terms or withdraw cover without very
good reason.
Talk to us – we understand your practice and risk