Dr James Foster, Head of Dental Services - Asia & Australasia, gives a high-level description of the indemnity services provided by MPS - and how they differ from basic insurance offerings.
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One of the most engaging aspects of travelling to Asia on behalf of Medical Protection Society, is the opportunity to find out from members and the wider medical community, what issues are important to them. This included both undergraduate and post graduate groups, specialists and of course the representative body of the profession, the Medical Associations, as well as individual members.
Medical Protection Society is a member-owned, not-for-profit organisation with the sole purpose of protecting the careers and reputations of members and it is important that we hear from members and all areas of the profession in order that we are best positioned to assist the membership.
Amidst a range of important issues, one question that I encountered often was around how Medical Protection’s occurrence-based offering differs from the insurance-based offering of other organisations.
Medical Protection offers discretionary indemnity. The relative merits of discretionary indemnity compared with insurance might not be an issue that doctors spend most of their time thinking about.
However, with professional overheads increasing, some medical professionals have been looking at alternative or cheaper indemnity products to save money. In most cases, cost comparisons are misleading because no two solutions are the same. If the cost of your professional protection is your only concern, then there is no need to read on. However, if you want to understand why the products differ in cost and the benefits the deliver, then the following information may make the difference between a lifetime of professional protection and a lifetime of regret.
The types of organisations that offer indemnity
Traditionally, the majority of doctors in Honk Kong, Malaysia and Singapore have been indemnified by a mutual indemnity organisation.
In the example of Medical Protection, our members are part of a mutual organisation that they collectively own. Members pay subscriptions that go into a central pool. If they face a complaint, claim, regulatory investigation or any other matter, members have a right to request assistance paid from this central pool.As the organisation is owned by members, the default position is to see how the member seeking assistance can be helped.
Once a request for assistance is approved, an experienced team of medicolegal consultants, case managers, in-house legal team and panel lawyers will then provide the right level of assistance, without being restricted by small print, financial caps or exclusion clauses. The level of assistance will be driven by context, but we have the discretion to assist our members where the provision and funding of remedial care can often be sufficient to conclude a complaint or potential claim.
Often one of the key differentiators between the protection we provide, and alternative contract-based insurance products is the ability to flexibly use discretionary indemnity to proactively assist members.
While most patients might prefer to avoid litigation, if an insurance contract lacks flexibility and will only assist if the matter proceeds to litigation, you might either have to use your own money or sit on your hands until the matter proceeds to formal litigation and Letter of Claim arrives at the door.
This provides a clear point of difference between the dentist who has a contract of insurance – which specifies what protection and services the company will and will not provide, along with exclusions and financial caps – and one with discretionary indemnity.
Of course, the medicolegal risks faced by medical professionals are not limited to litigation. Through the course of your career, you could be faced with complaints to your practice or hospital, regulatory complaints, claims in negligence, inquests, or in the worst-case scenario criminal charges. We help many members in a whole variety of ways including advice in relation to managing certain scenarios, drafting responses to complaints, and intervening early to prevent unnecessary developments.
As a complaint develops, some patients choose to make a complaint to the Medical Council or indeed threaten to do so. If members contact us at the earliest opportunity, we can often assist to resolve matters at that stage. This can help prevent unnecessary escalation and ensure an appropriate resolution is achieved for the patient.
If a member does receive notification of a complaint from the Medical Council, then assistance can be sought with the earliest of stages and to include drafting submissions to the PIC which are developed with our local Panel lawyers using input from the member and our in-house medicolegal team. We do not deny assistance with a regulatory matter if the complaint is not from a patient, nor do we insist that the complaint has to relate to a patient’s treatment.
As a discretionary indemnity provider, Medical Protection allows its members to seek assistance for such matters. For doctors relying on contractual insurance, it is vital they carefully read the policy wording and any policy schedules to ensure there is full understanding of what is covered and what is not.
Reliability
Another consideration for many doctors is whether protection will be available when they need it.
There is sometimes a belief expressed that a discretionary indemnifier can refuse or even withdraw assistance on a whim. This is not correct. Discretionary indemnity organisations must follow the law around how discretion is exercised, to ensure they are fair and consistent in their dealings. Medical defence organisations are also governed by their Articles of Association, which form a contract between the organisation and the member.
There are very few occasions where we have to decline requests for assistance. These situations arise where a member was not in membership at the time of the incident or not indemnified for the type of work or procedures that are the subject of a complaint or claim, or the request for assistance related to matters considered outside the scope of benefits of membership.
By way of contrast, an insurance contract clearly specifies when the insurance company will step in to support and when it won’t. It is important to check the fine print and consider whether there are financial limits imposed. If damages are awarded that exceed such a cap, this would leave a doctor personally liable.
Some insurers also have financial limits on legal costs, as well as significant excesses, each of which could mean an individual has to fund some of their own legal costs or risk being unrepresented before the regulator.
In our experience, those who have representation before professional regulators obtain better outcomes than those who do not.
Managing members with multiple cases
We exist purely for the benefit of our members and recognise that risk is an inevitable part of any doctor’s career.
Occasionally, some doctors experience higher risks than their colleagues who work in the same area of practice. In these circumstances, our approach to managing risk is to carefully balance the needs of the individual member with those of the wider membership.
We are well aware of the potential impact on a member’s career if they are deemed a significant risk.
We aim to indicate the nature of our concerns to individual members and will try and work with them early to reduce their risk.
At the same time, we believe that the interests of the majority of members should not be compromised by a small minority who have received a comparatively high volume of claims or other matters.
Where the member’s risk profile sits far outside their peers, we may consider raising their membership subscription in line with their risk.
Only in exceptional cases, where a member’s case history is far outside the norm of their peers, will we consider terminating or declining to renew their membership.
We recognise the potential impact of this decision, and it is made with significant scrutiny and consideration by fellow doctors.
Who takes the risk – the dentist or the indemnity provider?
Finally, another key point of difference for doctors to consider, is whether their protection is ‘occurrence based’ or ‘claims made’, and what extra steps they might need to take if opting for the latter.
Both the subscription charged by mutual organisations and the premiums charged by insurance companies are analysed and decided upon by actuaries, based on the risk to the mutual fund or reserves of the organisation concerned.
With occurrence-based indemnity, the responsibility for any future risk lies with the indemnity provider who ensures that the subscriptions collected today are sufficient to ensure that the organisation will be there when needed, to help members in perhaps 10, 15 or 25 years’ time.
With claims-made insurance, the extent to which risk is carried into the future depends on whether the medical professional can secure run-off or ‘tail’ cover when they end their policy or membership, retire or leave the profession. Therefore, claims-made policies do not need this element of future risk priced into their premiums, which is why they may appear more affordable in the short term.
If an individual is not given the option to purchase the necessary run-off cover when they wish to leave or retire, the doctor with a claims-made policy has no protection in place if a claim later arises and the incident that gave rise to the claim was not reported within the terms of the policy.
The individual would only be covered if they were insured when the claim arose, the incident was reported in accordance with the policy terms at the time, and the individual had separately purchased another insurance policy with a retroactive date dating back to when the clinical treatment in question was carried out. This can be complicated and an individual really needs to fully understand the type and nature of the indemnity that they have in place and be confident that it is sufficient for their needs.
With occurrence-based indemnity, any incident that arises from the time they are with their indemnity provider— even if the claim is raised years later such as during your retirement, is indemnified in perpetuity. We are seeing claims against doctors in Hong Kong arising seven or more years after the clinical care was provided. A run-off period of any less than these timeframes will not protect a dentist in the event of a clinical negligence claim being made many years in the future.
Another important aspect to consider in most, if not all, claims-made policies is the "Incident Reporting" requirement. This provision requires the doctor to report facts or circumstances of an adverse incident that might give rise to a claim in the future, and to do so within a proscribed period of time in order for the claim to be valid under the terms of the policy.
Ultimately, the decision on whether to choose discretionary indemnity or insurance, occurrence-based or claims-made protection, rests on your individual circumstances. The indemnity provider or insurer that you opt for should be able to explain how they will protect you. I was very pleased to meet with so many members of Hong Kong’s medical profession recently and discuss the support we can offer. I know myself and my colleagues would be more than happy to answer any questions you may have that are not addressed in this article.
Dr James Foster BDS, LLM, MFGDP(UK), FFFLM
Head of Dental Services – Asia & Australasia