Negligent Indemnity?

In the vast majority of cases, healthcare professionals at the wrong end of a Clinical Negligence claim are employed by an NHS Trust. Accordingly, the professional can rely on NHS indemnity to cover damages and legal costs. Dentists, doctors and various other professionals in private practice are somewhat different and do not enjoy the protection of NHS insurance. The legal status of these are similar to that of a private contractor and, as a result, must be sued as an individual. Again, in the majority of cases, these professionals are covered by a defence union which will indemnify the claims.

In the case of R v Medical Defence Union ex parte Moreton [2006], a claim was brought against a private orthodontist who had previously been indemnified against 3 claims. A further 74 claims were brought and the Medical Defence Union Ltd took an unusual position and declined to assist. The Union argued that the indemnity was discretionary and they were within their right to refuse to indemnify the claim. The decision was unsuccessfully challenged. The Claimants were therefore left without recourse as the Defendant did not have the means to meet the claims personally.

It is imperative at the outset of a negligence claim that it can be established that the proposed Defendant has the means to meet the claim. In the rare occasion that there is no indemnity in place, the Claimant must be protected. This situation also presented itself when the Royal College of Midwives withdrew insurance cover for independent midwives. Many midwives could not afford the annual private premiums which, in some cases, exceeded their annual salary. As a result, a Defendant midwife would be personally liable if they had not secured private cover. In such circumstances, active steps must be taken to safeguard the position of the Claimant at the earliest opportunity. This can be done, for example, by registering a charge on the Defendant’s property. This ensures that there are sufficient funds available to satisfy the claim and protect the Claimant who stands to be compensated.

Published 26/04/2007.