Where a patient is treated by the NHS, any issues in respect of the treatment provided is entirely covered by the NHS indemnity provided to medical professionals working within the local Trust. However, private healthcare is a different matter and medical professionals generally arrange to have private indemnity cover, similar to insurance, to cover any potential negligence claims that might arise in their private practice.
However, the nature of the indemnity has been subject of consultation in the UK recently, and is not fit for purpose. The indemnities provided by most medical indemnity providers is a discretionary indemnity. This means that it is at the discretion of the indemnity provider whether or not to provide cover for a claim arising against the medical professional during the course of the policy. The medical professional does not have any contractual right to an indemnity, as one would under a policy of insurance. Importantly, any patient harmed by any negligence or breach of contact by the medical professional has no rights against the indemnity provider.
To use a common comparison example, if you are involved in a road traffic accident which is not your fault, and the third party insurer refuses to indemnify the third party, the injured person will still have a right to recover against the insurer. This is not generally the case for a victim of medical negligence.
This problem does not arise often, as indemnity providers tend to offer the indemnity without issue. However, it can arise, and we are involved in an ongoing case where a dental practitioner, who had a policy in place at the time of treatment with a large medical defence organisation, has been refused indemnity. Consequently, the patient who has been harmed can be left in a difficult position, potentially having to pursue the medical professional individually for compensation for his injuries, with no guarantee that the medical professional will be in a position to actually pay the compensation.
The recommendation in the recent UK Consultation process was that the indemnity for medical professionals should be brought in line with other regulated insurance. It is essential that this is done so that patients who have been injured due to negligent private medical treatment are not left without full and proper compensation.