Medical
malpractice insurance is a practical necessity in the current litigious environment,
as an unfavourable judgment can lead to severe financial and reputation
consequences.

Some of
the most serious cases, for example where healthcare practitioners are found to
be negligent in causing a minor child to suffer a brain injury resulting in
cerebral palsy, may result in a judgment being awarded in favour of the patient
in an amount of R20 million or more.

A
comprehensive medical malpractice policy can assist in covering the medical
professional for legal fees and the costs of an unfavourable court order.
However, insurance policies are contracts between the insurer and the insured.

Reading
the policy is vital in ensuring that the medical professional complies with the
terms of the policy; and in ensuring the claim is accepted by the insurer.

One of the
most important obligations of the insured is to timeously notify the insurer of
a claim, or a potential claim.

Identifying
that a formal claim has been made is often easy, since a summons or other type
of formal written complaint will be received. However, policies often require
that potential claims, or events that may lead to claims, also be notified.
This could include things like a request for medical records, where a claim has
not yet been formally made.

Notification
must be done even if the medical practitioner believes they were not at fault,
e.g. if a baby is delivered and it is found that the baby has suffered some
sort of injury in the womb, or potentially during delivery. Such an event
should be notified even though the cause of the injury may be unclear at the time;
this is especially so where the patient indicates displeasure at the outcome of
a medical procedure. Any medical procedure that results in complications; where
the patient complains verbally; or where the outcome of the procedure is unusual
or makes the healthcare professional feel uneasy, should probably be notified.

Insurers
prefer (and even require, depending on the wording of the policy) notification
– even where a claim has not formally been made yet. This allows them to
prepare for claims that may arise; to set aside reserve funds for potential claims
and to manage their liabilities. It also allows insurers to set appropriate
premiums based on risk. This is why insurers often write detailed notification
obligations into the contract, which serve to ensure that the obligation to notify
extends beyond the obvious formal claims that are received.

While
claims may be discussed telephonically with the insurer or broker, it is
important to note whether there is an obligation for the insured to also notify
the claim or potential claim in writing. The notification obligations for
renewal of the policy should also be noted, in case they require written
notification of past claims or potential claims on renewal as well.

If you are
unsure of whether to notify an incident or not, it is better to err on the side
of notification and to ensure that you don’t fall foul of the notification
provisions in the policy.

*Aneesa
Bodiat
, Natmed Medical Defence