Indemnity for claims many years after an incident

Sting in the tail

The case of a doctor who received a claim 40 years after the incident1 attracted many comments in the medical press and online. The time lag is extreme, but not uncommon.

A claim for clinical negligence can arise at any time, and often without warning. In our experience, around 70% of medical claims are brought within the statutory time limit from the date of the consultation or procedure which gave rise to them. But we have been notified of hundreds of claims by members in independent practice which were made more than 10 years later, and the number is even higher for GP members.

In one case, reported in the MDU Annual Report and Accounts 2012, a GP received a claim 40 years after the incident, and some 15 years after he had retired.

The case concerned a mother who went into labour at 42 weeks and was admitted to her local GP-led unit. At that time, the mid-1960s, the practice was to allow labour to progress for 48 hours before transferring the mother to hospital for specialist care. The GP followed the guidelines and sent the patient to a nearby specialist obstetrics department after two days as labour had failed to progress. The specialist care unit also followed the guidelines of the time and allowed labour to continue for a further 12 hours before carrying out a caesarean section. The baby was born with severe mental impairment and poor mobility skills. In adulthood, she was unable to care for herself.

The statute of limitations requires a claim to be brought within three years of the incident or knowledge of the harm caused. In many cases, patients are themselves unaware they have a case until their condition is diagnosed or a post-operative complication becomes apparent years later. Even then, they still have three years to bring a claim. If a child is involved, the limitation period only begins when the child is 18 (16 in Scotland). But no time bar applies when the child lacks capacity. The parents in this case began their clinical negligence claim when their child was middle aged.

While the MDU has successfully defended many of these so-called 'long-tail claims', the shock to the doctor of receiving a solicitor's letter after such a long time is difficult to imagine. Occasionally the MDU has been contacted by the next of kin of members who were distressed to receive a claim after the doctor had died.

The possibility of allegations being made about your practice after such a long time highlights the necessity of retaining your clinical records for as long as possible. It also shows why it is essential for doctors to check their indemnity position to ensure they will not be exposed if a belated letter of claim arrives.

If you were an MDU member at the time of an incident, even if it was many years ago and you have since retired, you have the reassurance of knowing you can seek our assistance with claims arising from incidents which occurred during your membership. This also applies to your next of kin if a claim is made against your estate.

Bear in mind that doctors who purchase claims-made insurance alone are covered only for claims notified when the policy is in force. If they want to leave the provider before retirement, they will need to buy additional 'run off' cover for any future claims that arise from incidents that occurred during the policy period.

Even where a claims-made provider offers extended reporting benefits post-retirement, these are likely to be limited by time and amount.

Reference

1 MDU Annual Report and Accounts 2012,  page 19.

This article appeared in the printed version of the MDU Journal November 2013 under the title A sting in the tail

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This page was correct at publication on . Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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