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Falling through the cracks of NHS indemnity

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A claim currently being handled by Shoosmiths medical negligence team has highlighted the problem of loopholes in liability and indemnity cover when things go wrong that may face claimants using sub-contracted out of hours GP services.

These problems are highlighted by the tragic case of our young client who suffered permanent brain damage after contracting meningitis at just 2 ½ years old. Now 14 years old, severely disabled and totally reliant upon others for care, it is alleged that failures in the care provided by a Nurse Practitioner caused a significant delay in the diagnosis and treatment of her meningitis leading to her brain injury. Liability is denied.

In order to meet the youngster’s considerable current and future needs, any claim will have a substantial value. However, even if her claim for clinical negligence is successful, it is likely that she will be significantly undercompensated because the limit of the Nurse’s professional indemnity insurance falls considerably short of the likely value of the claim.

The background

Between Christmas and New Year 2008 our young client became unwell. Her grandmother contacted their General Practitioner’s surgery, but this was closed. An automated message provided a telephone number for out of hours emergencies. On calling this number our client’s grandmother was advised to take the infant to an out of hours primary care centre, which she had never visited before, based on the site of an NHS hospital.

Following an examination there, a Nurse Practitioner diagnosed acute pharyngitis and prescribed antibiotics. On 29 December the infant’s condition deteriorated, and she was taken by ambulance to Birmingham’s Children’s Hospital. Meningitis was diagnosed and she underwent emergency neurosurgical procedures. However, the treatment was too late to prevent permanent brain damage.

The indemnity position

The NHS had outsourced the provision of out of hours primary care to a private, non-NHS company (the centre).The “centre” did not have a separate policy of insurance and is therefore not insured for the claim despite the fact that the NHS had required provision for adequate insurance as a condition of the outsourcing contract. The Nurse Practitioner was self-employed and had her own policy of indemnity insurance, but the cover is limited to well below the value of any reasonable claim, which would have to fund our young client’s needs for several decades.

Our client (the claimant) turned to the NHS for reassurance that they would meet any shortfall in professional indemnity insurance to the level required, given her significant and life changing injuries, should her claim in negligence against the Nurse Practitioner be successful. The NHS refused to give that assurance and denied any liability.

The case goes to court

The claimant, as an NHS patient, therefore made a claim on the basis that the NHS owed her a non-delegable duty of care to protect her from harm. The claim was defended. A trial of this preliminary issue took place on 21 October 2020. The Judge ruled that, by virtue of the statutory and regulatory provision, the NHS was permitted to outsource it’s out of hours primary care services and, accordingly, is not liable to indemnify the claimant.

The situation our young client faces is considerably unfair and unjust for a number of reasons:

  • She remained an NHS patient throughout.
  • Her grandmother took her to the “centre” on the advice from the out of hours emergency service.
  • Had she been seen by a GP, rather than a Nurse Practitioner, the level of indemnity cover would probably be more proportionate. As things stand, the inadequate provision for insurance could leave her substantially under compensated for her devastating injuries if she establishes liability. This is a real concern as her care needs are currently met by her grandmother.
  • Her grandmother had no idea that the “centre” was not managed or fully indemnified by the NHS nor was she ever informed that it was managed by a private organisation separate from the NHS.
  • She had no reason to believe that there might be inadequate indemnity insurance if things were to go drastically wrong.

The current position

The irony is that had her grandmother ignored the instructions given by the out of hours emergency service and instead taken her granddaughter to the A&E Department of the very same NHS hospital in which the out of hours service was based, then the NHS would provide a full and complete indemnity for any injuries caused by negligence.

It appears that this loophole has been partially closed by new NHS schemes, which now cover liabilities arising in general practice, including some events that occurred before the schemes started. However, the schemes do not currently cover this claim. This gap in clinical negligence indemnity insurance, whilst devastating for a claimant in our young client’s position, will also be of considerable concern for Nurse Practitioners and other healthcare professionals whose limited indemnity may leave them open to personal liability.

Richard Bannister, the medical negligence solicitor who is acting in this case, said:

“How can it be acceptable that a provider of healthcare services to NHS patients does not hold adequate indemnity insurance that it is required to do by contractual and regulatory provision? The NHS must support all of its patients and those treating them, to ensure that full indemnity insurance is in place to cover the extent of all liabilities which may arise as a result of any treatment which is substandard and causes injury." 

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