Medical malpractice

In this chapter of our Annual Insurance Review 2019, we look at the main developments in 2018 and expected issues in 2019 for medical malpractice.

Key developments in 2018

Vicarious liability has been one of the hot topics of 2018. Of course, this fundamental legal principle is relevant to a variety of sectors, but perhaps most interestingly in its application to the medical malpractice sphere. And beyond just the academic development of the law, we’ve seen how these changes have impacted on industry, whether that be insurers, individual practitioners or private healthcare organisations.

The law in this area is continually developing, perhaps best illustrated by the Court of Appeal’s decision in Barclays Bank v Various Claimants, handed down in June 2018 (where the bank was held to be liable for the actions of an independent contractor, Dr Bates). And now those developments are starting to impact on the business decisions being made by private healthcare organisations as well as the individual practitioners who, until now, have been contractors holding practising privileges granted to them by the healthcare organisation.

Most notable is the increasing number of healthcare providers electing to formally employ doctors (or other members of staff) who were previously working under practising privileges or agency agreements. And why is this? Quite simply, for certainty. Employing such individuals avoids convoluted legal wrangles over vicarious liability if a claim is brought, and it also means providers and clinicians can be certain of the indemnity being offered to them (particularly at a time when defence organisations are increasingly offering indemnity only on a discretionary basis – with the risk of refusal of cover). The opportunities for the open insurance market are, therefore, growing, as healthcare organisations need wider cover. It might not be long before employing doctors becomes the norm.

What to look out for in 2019

The UK looks set to make some real progress in its approach to medicine over the coming year. And while that presents some great opportunities (for patients and industry alike) there are, of course, some potential pitfalls that need to be negotiated (and avoided) – most potently the issue of prescribing.

On 26 July 2018, the Home Secretary, Sajid Javid, announced that cannabis-based medicines were to be moved to Schedule 2 of the Misuse of Drugs Regulations 2001, based on evidence that cannabis has therapeutic value. He confirmed that “senior clinicians will be able to prescribe the medicines to patients with an exceptional clinical need”. On 1 November 2018, that became a reality.

We can expect to see this situation develop over the course of 2019 with, potentially, a spike in prescriptions for cannabis-based medicine. As with the prescription of any drug, however, (and particularly with modern drugs, such as cannabis, or addictive drugs, such as opioids) there is scope for some serious liability, including allegations of over-prescribing, challenges of refusal to prescribe, and consenting issues.

So how can prescribers (especially GPs) and their insurers mitigate these inevitable risks? Well, for those prescribing it will be of paramount importance to record detailed notes of all consultations and decisions made (including if a decision is made not to prescribe). For insurers it will be worth considering the wording of any policy (including, for example, whether the insurer wants to include cover for claims regarding the use or misuse of drugs). In any event, it looks set to be another interesting 12 months for the medical malpractice sphere.

Authored by Natalie Drew.

Download our full Annual Insurance Review 2019 for more insights.