Medical malpractice

Published on 17 January 2018

In this chapter of our Annual Insurance Review 2018, we look at the main developments in 2017 and expected issues in 2018 with regards to medical malpractice.

Key developments in 2017

The tragic story of Charlie Gard is sadly not that uncommon, with many “best interests” cases being heard in the courts over the years. But what made Charlie’s such a key story in the 2017 medico-legal world?Answer: the powerful use of social media to bring about public pressure, new evidence (although ultimately unsuccessful) and a second hearing.

Born with an extremely rare genetic condition, Charlie was under the care of Great Ormond Street Hospital (GOSH) when it concluded that Charlie’s life support should be switched off. His parents objected, arguing for treatment in the United States. GOSH applied to the High Court, which decided it would be in Charlie’s best interests to end life support. The Court of Appeal, Supreme Court and European Court all reached the same decision.

And this is where the power of social media really began to impact legal process – not only were the public immersed in the case, but so too were the Pope, and Donald Trump (who Tweeted about Charlie). The US doctor (Professor Hirano) who had offered therapy to Charlie then co-signed a letter that suggested unpublished data showed that therapy could help.

It was this new evidence that prompted a further application by GOSH, leading to a fresh hearing. Professor Hirano’s evidence was undermined when he admitted he had not examined Charlie. Sadly, when Professor Hirano did examine Charlie he accepted that therapy would not help. Charlie was transferred to a hospice and passed away the next day.

In this case, the dissemination of information via social media created an extraordinary response, with protests outside the Royal Courts of Justice and death threats to GOSH staff, counsel and the judge. This was unprecedented, but the case will not be the last case to capture the public’s attention, and we can expect the powerful use of social media to continue to impact on the medico-legal world.

What to look out for in 2018

In the wake of the Ian Paterson “rogue surgeon” scandal (in which RPC acted for the private healthcare organisation involved), and amid increasing public pressure, the Health Secretary, Jeremy Hunt, promised“a comprehensive and focused inquiry to ensure that any lessons are learned in the interests of ensuring patients are protected in the future.” The inquiry, if commissioned, is likely to look into the workings of private hospitals, the relationship between the public and private sector, and the role and responsibilities of private practitioners. One of the key areas of focus is expected to be the indemnity position of individual doctors, many of whom rely on defence organisations.

This cost for medical defence organisations has long been seen as high (perhaps even prohibitively so) –and is increasing, particularly as a result of the change to the discount rate. Perhaps this is best evidenced by Jeremy Hunt’s latest announcement that clinical negligence claims against GPs will soon be covered under a Government-backed scheme (in an attempt to reduce the number of GPs leaving practice due to rising insurance premiums).

Perhaps the Government-backed scheme for GPs is the first incremental step towards a more seismic change in 2018 for the medico-legal and insurance world. Whether it is paving the way for more open market opportunities in insuring individual practitioners, or whether private hospitals will seek to cover individuals under the organisation’s entity insurance (at an increased premium to themselves), it is something insurers, providers and practitioners all need to think very carefully about.

Download our full Annual Insurance Review 2018 for more insights.

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