In the second article looking at insurance issues, Lesley Owen and Martin Bell examine medical malpractice policies

A lay person reading OPTICIAN could get the impression that GOG disciplinary charges of serious professional misconduct are commonplace. In reality, the actual number of complaints/allegations compared to other medical professions is very small. When you consider the number of eye examinations each year for the profession as a whole, the figure is actually minuscule.

The typical cost of medical malpractice (MM) insurance for a dentist is in the region of £800 a year and for a doctor the sum increases to several thousand pounds. By contrast, an optometrist can find cover for less than £200 or incorporate the cost within the annual subscription to the Association of Optometrists.

This relatively low, but increasing, cost of insurance is testament to the high standards within the profession and the lower risk profile of activities undertaken in comparison to other healthcare groups. However, the 'no win, no fee' culture is fuelling legal disputes of all types and optometry is not immune.

Doctors, dentists and optical practitioners purchase essentially the same coverage, but amended and tailored to meet the specific requirements of the scope of practice. There are a limited number of organisations offering MM insurance, as the market in the UK has contracted. Practitioners should assess the adequacy of their cover to ensure it meets their requirements and become familiar with the specific terms and conditions upon which cover is based.

To assist, this article gives an overview of the main policy terms and conditions and broad headings of cover needed to meet the special risks, responsibilities and potential liabilities associated with the optometry profession. Always ask for a summary of the main terms and conditions, or a full policy document.

Importance of Records
To the best of our knowledge all MM policies contain conditions regarding record-keeping. The importance of record-keeping cannot be overstated, as it is the basis on which the optometrist or dispensing optician is able to defend his or her professional reputation, practice and livelihood. This is reinforced by the GOG, which fines and sometimes suspends optometrists for inadequate record-keeping - sometimes even in circumstances where reliable responses from patients are easy to obtain.

Patient records form the basis of any medical legal defence and there may be a presumption that if a patient record is incomplete then the examination was similarly incomplete, strengthening the claimant's case.

Retroactive Cover
Does the policy provide unlimited retroactive cover? This protects against the consequences of previous work undertaken. Most MM policies are underwritten on what is called a 'claims-made' basis. This means that it is the policy in force at the time the claim is made which manages the claim, not the policy in force when the alleged error or omission took place.

As legal actions arise many months, sometimes years, after the alleged incident, it is vital when changing insurers to ensure that the new company covers the consequences of previous work.

Check that the policy covers the range of professional services undertaken. Do they include therapeutics and allow for the changing scope of practice? Cover should be available for all activities within the scope of practice agreed by the GOG, including the supervision of pre-reg students, part-time teaching, working as a locum, and co-management arrangements.

Ensure the policy protects the practice as well as the practitioner. A patient has the option to bring the action against one or both. The policy should ideally be designed to indemnify the practitioner and his or her employer/practice by including the business as jointly named on the policy. If you engage locums will your practice be indemnified for liability arising from their actions? On your policy or theirs? Clarification should be sought.

Does the policy meet the legal costs of defence at disciplinary proceedings? These should be included, as very often an MM claim will go hand in hand with a disciplinary hearing. Cover should extend beyond allegations of medical negligence to defence of allegations of improper conduct including sexual impropriety and assault.

MM insurance should sit alongside public and products liability (OPTICIAN, July 25, 2003). This is due to the fact that while practice contents insurance covers public liability, it specifically excludes 'professional risk'.

It is, therefore, limited in scope to accidents arising from occupation of premises, such as slips and trips. Consequently, it will not cover injury arising from the eye examination, or the fitting of spectacles or contact lenses. Complete coverage should be obtained by a joint medical malpractice, public/ products liability policy.

Other conditions relate to the timing of notification of claims. Late notification can prejudice the insurer's position and may invalidate your cover. All MM policies contain conditions of this nature. Generally we advise practitioners to give immediate notice of any claim or any circumstances likely to give rise to a claim. This would mean notifying at the first opportunity after either the written or verbal allegation has been made. Early notification enables investigation and an appropriate defence to be constructed within the timescales set by legal protocols.

Nearing Retirement
Practitioners who are approaching retirement should choose insurers able to arrange 'run-off cover'. If the MM policy has been arranged on a 'claims-made' basis then run-off cover is essential. This extends the life of the policy into retirement for legal actions, which are made after retirement, but which relate to acts, errors or omissions while in practice.

Of course, for any practitioner prevention is better than cure. Minimising the risks of complaints and litigation is to the benefit of all concerned. It protects the practitioner's professional reputation and their continuing livelihood.