Medical Malpractice

Written by Genevieve Isherwood (Senior Associate), Bryce Jones (Associate)

Key developments in 2024

2024 has seen an increase in the number of physician associates (PAs) working across the medical sector (NHS and private). Employment of PAs is considered a fast and cost-effective method of addressing workforce shortages and ever-growing healthcare demands. In June 2022, there were 1300 PAs in England and Wales, rising to over 3,300 by June 2024. The numbers are expected to increase.

PAs undertake significantly less medical training than doctors, and so there are specified restrictions on the scope of their practice, to ensure public safety. Each PA must be supervised by a qualified doctor, who should be confident that the PA has the necessary skills and knowledge to undertake any given task. Importantly for Insurers, when a patient is treated by a PA, the supervising doctor remains responsible for the patient's care. If treatment is negligent, and a claim pursued, the doctor will be on the hook.

There is therefore a strong possibility that Medical Malpractice Insurers are providing cover for the care of a much larger number of patients than they anticipated. For example, Insurers may think they are insuring one GP seeing about 30 patients a day, when, in fact, the GP is seeing 20 patients a day and supervising three PAs each seeing 30 patients. On the number of patients alone, Insurers' risk has more than tripled and this is before consideration is given to whether the GP can adequately supervise the PAs alongside their own practice.

To avoid falling foul of the Physician Associate risk, careful inquiry is required by Insurers at proposal stage, and it may be appropriate to offset the risk through increased premiums or limitations on coverage.

What to look out for in 2025

In November 2024 the Terminally Ill Adults (End of Life) Bill (the Bill) was introduced for Parliamentary review; it could be enacted in 2025. The Bill allows doctors to assist adults with a terminal illness to end their lives, subject to procedural safeguards and protections.
The proposed process requires assessment by at least two doctors, and the approval of the High Court, before the assisted death can happen. Medical assessments are likely to be performed by palliative care practitioners, but there are no qualification restrictions on which doctors may conduct assessments, so that additional liability risk could apply to any qualified doctor.

No practitioner will be obliged to participate in assisted dying; there will be a 'conscientious objection' provision, which means there should be no civil liability exposure for failing to do so, although a doctor might be expected to refer the patient to a doctor who will participate. There will be no criminal or civil liability for those who assist dying in accordance with the required procedures. If statutory procedures are not followed, however, an insured practitioner may face prosecution and/ or a civil claim.

Given the uncertainty over the final content of the Bill, and the extent of any resulting medical malpractice liability, Insurers may wish to consider their approach to offering cover for participation in assisted dying. In Australia, where assisted dying has been legal in various states since 2019, many underwriters are inserting exclusions into their policies, while others make no distinction between the provision of euthanasia and other medical practice. There may therefore be a niche in the market for a bold insurer willing to cover this risk!

Explore Annual Insurance Review 2025