More people are turning to private healthcare services than ever before. A growing number of individuals are covering their medical expenses, even without having private health insurance. In 2021, the amount spent on healthcare out of pocket by individuals without insurance accounted for 12.7% of the total healthcare spending in the country, which is approximately £35.6 billion.
In 2022, more than 500,000 individuals obtained private health insurance for the first time. The main challenge is accessing NHS services. The long queues for treatment and the unpredictability of when surgeries or other procedures will be available are seen as the main reasons for this trend. The Covid pandemic may have played a role in accelerating this increase.
Some experts argue that this could result in a two-tiered healthcare system. These experts believe that such a system is already in place when people are seeking compensation for medical mistakes, and the higher quality services might not be available where one would hope.
Many people hold mistaken beliefs about private healthcare. To start, it's commonly believed that private care offers superior quality compared to NHS care. However, legally, there's no difference in the level of care recognized by the law. Additionally, it's often assumed that paying for a service gives you more rights to claim if something goes wrong. This isn't always the case.
It's well-known that someone injured while under NHS care could potentially pursue a claim for negligence. The NHS is legally responsible for the behaviour of its staff and doctors. The specific hospital involved will pay the victim. Yet, if the injury happens whilst getting care from a private doctor, the question of who has better insurance could be important.
Healthcare professionals practicing in the UK must have appropriate clinical negligence indemnity cover. This cover is essential as it pays for compensation, costs, and legal fees in cases of clinical negligence. The cover can be provided through a state scheme, an insurance policy, a discretionary indemnity arrangement, or a combination of these options.
NHS staff have appropriate insurance coverage through their trust's membership in the Clinical Negligence Scheme for Trusts which is administered by the NHS. Challenges may arise when assessing the adequacy of insurance held by a defender in private clinical practice.
The main concern is whether to pursue the private doctor, who is supported by a Medical Defence Organisation (MDO), and the hospital, which will have a separate insurance arrangement. The pursuer must balance the risk of incurring costs from pursuing two defenders against ensuring sufficient coverage for any awarded damages.
Private healthcare professionals are supported by MDOs, whose indemnities are discretionary. This creates a difficult situation for pursuer solicitors. They must decide whether to include an additional defender (the hospital), which results in duplicated costs or to pursue the private doctor alone and take on the risk of potential inadequate coverage for the awarded damages. If inadequate coverage occurs, the injured patient might take legal action against the solicitor for failing to include the defender with the means to pay.
In the realm of medical negligence claims, many cases are brought against an NHS entity and fall under the NHS Indemnity. Private hospitals, on the other hand, have separate insurers to cover established claims. It's important to note that some private healthcare and dental professionals may not be covered by these schemes.
Unlike commercial insurance companies, MDOs' discretionary indemnity arrangements do not come with a contractual obligation to cover professionals they represent. As clinical negligence costs and damages rise, the risk of discretionary indemnity cover being withdrawn becomes more real. Additionally, MDOs are not obligated to maintain reserves for potential liabilities and are not required to disclose their full financial positions.
This lack of financial transparency means healthcare professionals may not fully understand the extent of their financial cover. It's also worth noting that MDOs are not subject to financial conduct regulation. Solicitors will need to carefully consider their approach to litigation in cases involving high-value claims in a private healthcare setting.
As the private healthcare sector continues to expand, we can expect to see a rise in cases involving a private clinical aspect. It is crucial to handle claims against private consultants with great care. We must ensure that the appropriate legal actions are taken and that the right parties are pursued, particularly if there is involvement from a Medical Defence Organisation (MDO).
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