In August 2017, the English Court of Appeal denied an appeal to a gynaecologist who was struck off the roll for practising without professional indemnity cover, which is compulsory in the UK.
The doctor, who had a substantial private practice, was uninsured for a period of 5 years between 2007 and 2012. Until 2002, he had been insured by the Medical Defence Union but changed to the Medical Protection Society in 2002. He stopped paying his subscription fee in December 2006 leading to termination of his membership by the MPS. He denied ever having received the termination letter.
In 2009, he was sued by a former patient for alleged professional negligence in respect of treatment received in 2006. The MPS refused to cover him.
The court found that even if he was being truthful about not having received the termination letter, his indemnity membership with the MPS was renewable on an annual basis. He had not paid his subscription for a considerable period of time and had therefore known that he would be uninsured if a claim was made against him.
It was also found that in obtaining cover with a new insurer, the doctor had lied about having had no previous claims against him and that no medical defence organisation had refused or terminated his membership.
The appeal was refused with the Court of Appeal citing the risk of further misconduct if he remained in practice. The court said the doctor knew he would be uninsured if a claim was made against him, and that although he would have trusted his own skill and care this was insufficient to meet his professional obligation to obtain cover.
What is the position in South Africa?
There is currently no legislative requirement in South African law for compulsory insurance for private doctors. In 2010, the Minister of Health published regulations relating to mandatory indemnity cover for doctors. These regulations were later repealed before they could be implemented most likely because of the many faults in the provisions. For instance the regulations did not specify the extent to which cover was required or what would be considered adequate cover. They also raised questions whether the cover must only be taken out for claims made during the insured period and did not make provision for run-off cover.
Failure to maintain indemnity cover under the draft regulations constituted unprofessional conduct leading to an inquiry regarding the conduct of the doctor.
Currently, private hospitals require, as a term of the contract with doctors that the doctors practising at their facilities must carry adequate insurance cover. Those who don’t would do well to obtain insurance before the regulations are revived. There is no indication when the regulations will be published but when they are, they are likely to provide clearer guidelines regarding the scope of cover and consequences of non-compliance which may well include doctors being struck off the roll.
The case is Roderick Ewan Irvine v the General Medical Council.