Private hospital. Medical Indemnity Insurance Policy. Avant Insurance Limited ABN AFSL

Transcription

1 Private hospital Medical Indemnity Insurance Policy Avant Insurance Limited ABN AFSL

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3 Preamble In consideration of payment by the insured of the premium, the insurer agrees to indemnify the insured in accordance with the definitions, terms, conditions, limit of indemnity, sub-limit of indemnity, deductibles, exclusions and endorsements, if any, of this policy. How much will the insurer pay? (e) (f) Unless stated otherwise in this policy, the most the insurer will pay for any one claim under this policy, and in the aggregate for all claims during the period of insurance is the limit of indemnity. Any sub-limit of indemnity that applies to cover provided by this policy is the most the insurer will pay for claims against that cover; and in such cases the sub-limit of indemnity applies in place of the limit of indemnity; The limit of indemnity and sub-limit of indemnity are exclusive of the deductible; The limit of indemnity and sub-limit of indemnity are inclusive of defence costs; Nothing in this policy operates to increase the limit of indemnity or sub-limit of indemnity under this policy; All claims or requests for indemnity under this policy which arise from, or are attributable to, a single act, error omission, or occurrence or series of similar or related single acts, errors, omissions or occurrences will be treated under this policy as one claim or one request for indemnity. 1. Insuring clause 1.1 Medical indemnity for healthcare incidents The insurer will indemnify the insured, for all amounts which the insured becomes legally liable to pay as compensation for a claim: first made against the insured and reported to the insurer during the period of insurance; and arising from a healthcare incident directly in connection with the business, which occurred after the retroactive date. 1.2 Defence costs If the insurer agrees to indemnify the insured under this policy, the insurer will pay the defence costs incurred with the prior consent of the insurer. 2. Automatic extensions These automatic extensions are subject to all the definitions, terms, conditions, limit of indemnity, any sub-limit of indemnity, deductible, exclusions and endorsements of this policy, unless specifically expressed to the contrary. 2.1 Good Samaritan acts The insurer will indemnify the insured in respect of healthcare provided at the scene of a medical emergency, accident or disaster, provided that the insured is not acting in a professional capacity for any other entity or person at the time of the act, error or omission. Cover under this automatic extension applies notwithstanding that the Good Samaritan act does not arise directly in connection with the business. 2.2 Trade practices The insurer will indemnify the insured in respect of a breach of the Trade Practices Act 1974 (Cth) or similar state or territory fair trading legislation where the breach occurred in connection with the provision of healthcare in relation to the business. 2.3 Intellectual property The insurer will indemnify the insured for all sums which the insured becomes legally liable to pay in respect of infringement of intellectual property rights, provided that the act, error or omission by the insured is unintentional and is committed in connection with the provision of healthcare in relation to the business. 2.4 Vicarious liability for consultants, contractors and medical practitioners The insurer will indemnify the insured for all sums which the insured becomes legally liable to pay in respect of legal liability arising from a healthcare incident directly connected to the business, in relation to a consultant, contractor or medical practitioner or other person or entity that is not the insured within this policy, subject to clause 4.35 and the insured complying with clause 6.5 To avoid doubt, this does not operate to indemnify any such person or entity that is not the insured. 2.5 Breaches of privacy The insurer will indemnify the insured for all sums which the insured becomes legally liable to pay in respect of an unintentional breach of confidentiality owed to a patient or an unintentional breach of any privacy legislation which occur in relation to the business. 2.6 Medicare benefits fraud Despite clause 4.6, the insurer will indemnify the insured for legal fees incurred by the insured where: a claim or inquiry is commenced against the insured and notified to the insurer during the period of insurance; and the claim or inquiry is as a result of any alleged dishonest, fraudulent, criminal or malicious act or omission in relation to Medicare benefits payments or schemes by Private hospital Medical Indemnity Insurance Policy 1

4 any employee occurring or committed in connection with the business; and neither the insured who is alleged to have committed the act or omission nor any person who condoned any such act or omission are covered by this extension; and the insurer s liability under this clause for any one occurrence and in the aggregate for all occurrences does not exceed the sub-limit of indemnity for Medical Benefits Fraud specified in the policy schedule or if no such sub-limit of indemnity is specified in the policy schedule, $100, Continuous cover Despite clause 4.20, the insurer will indemnify the insured where: (e) (f) (g) (h) the insured failed to tell the insurer about a known circumstance that later gave rise to a claim against the insured which the insured knew about or a reasonable person in the insured s position would have thought might result in a claim or allegation being made against the insured; and the insurer was the medical indemnity insurer of the insured at the time the insured first knew or ought to have known of the known circumstance that gave rise to the claim; and the insurer continued without interruption to be the medical indemnity insurer of the insured after the insured first knew or ought to have known of the known circumstance that gave rise to the claim; and the known circumstance is notified to the insurer by the insured against whom the claim is made under this policy and the claim or circumstance is covered under this policy; and had the insurer been notified by the insured of the known circumstance when the insured first knew of it, the insured would have been covered under the policy in force at that time; and the known circumstance giving rise to a claim was not previously notified to the insurer; and the insurer s liability under this automatic extension for any one occurrence and in the aggregate for all occurrences under this extension shall not exceed the lesser of the limit of indemnity insured under this policy, or the limit of indemnity under the previous policy that the known circumstance should have been notified under; and there is an absence of fraudulent nondisclosure by the insured The insurer may reduce its liability to the extent of any prejudice the insurer may suffer in connection with the insured s failure to notify the insurer when the insured first knew of the known circumstance. 2.8 Legal fees for inquiries The insurer will indemnify the insured for legal fees incurred, in relation to an inquiry, provided that: the inquiry is commenced, commissioned or ordered during the period of insurance and the insured tells the insurer about the inquiry in writing during the period of insurance; and the inquiry arises from healthcare directly connected with the business and which occurred after the retroactive date; and the insurer s liability under this clause for any one occurrence and in the aggregate for all occurrences does not exceed the sub-limit of indemnity for Legal fees for inquiries specified in the policy schedule or if no such sub-limit of indemnity is specified in the policy schedule, a limit of $500, Loss of documents The insurer will indemnify the insured for costs incurred by the insured to replace or restore documents which have been destroyed or damaged, provided that; (e) such loss or damage is sustained during the period of insurance while the documents are either in transit or in the insured s custody or the custody of any person to whom the insured has entrusted them in the course of the normal conduct of the business; and such loss or damage is not a result of normal wear and tear, lack of access to electronic data or where the insured has deliberately or wilfully caused the destruction or damage of documents; and the cost to replace or restore the documents must be supported by bills and accounts which shall be subject to approval by the lawyer or, if there is a dispute, the President of the Law Society of the state in which the policy was issued; and the insurer s liability under this clause for any one occurrence and in the aggregate for all occurrences does not exceed the sub-limit of indemnity for Loss of Documents specified in the policy schedule or if no such sub-limit of indemnity is specified in the policy schedule, $100,000; and the insured does not hold any other insurance for document replacement or restoration cover with another insurer; and Private hospital Medical Indemnity Insurance Policy 2

5 (f) the insurer will be subrogated to the rights of the insured as against any person other than the insured in whose custody the documents were when they were lost or damaged Contagious diseases Despite clause 4.4, the insurer indemnifies the insured s liability for the transmission of a contagious disease or virus of any kind to a patient where: the transmission arises from the insured carrying a contagious disease or virus, or from a contagious disease or virus being transmitted as a result of some act or omission of the insured; and the insured did not know, or had no reasonable grounds to suspect that: (i) (ii) the insured was carrying a contagious disease or virus; or that a contagious disease or virus had contaminated the insured premises, equipment or other staff members; and at all relevant times the infection control protocols and procedures, together with the equipment, premises, staff training at the insured s premises, met the Australian and New Zealand Standards 4187 and 4815; and at all relevant times the insured complied with any health directive regarding infection control issued by the Commonwealth, or the state or territory in which the insured carries on its business Employed registered healthcare professionals The definition of the insured is extended to cover: an employed registered healthcare professional, which includes a nurse, midwife, psychologist, podiatrist, physiotherapist, dentist, pharmacist, osteopath, optometrist, chiropractor and occupational therapist; and there is an agreement or understanding between that professional and the insured that the insured will arrange insurance for him or her in the nature of this policy. 3. Optional extension for employed medical practitioners The following optional extension is only included in this policy where agreed to by the insurer and the optional extension is specified in the policy schedule. This optional extension is subject to all the definitions, terms, conditions, limit of indemnity, sub-limits of indemnity, deductibles, exclusions and endorsements of this policy, unless specifically expressed to the contrary. The definition of the insured is extended to an employed medical practitioner, who is employed as a resident medical officer provided that; 4. Exclusions the employed resident medical officer is declared to the insurer in the application form, or has commenced employment during the period of insurance and has been notified to the insurer within 30 days of such employment commencing; and there is an agreement or understanding between the insured and the employed resident medical officer that the insured will arrange insurance for the employed resident medical officer in the nature of this policy; and such agreement (or understanding) is a prescribed arrangement under Regulation 4(1)(h) of the Medical Indemnity (Prudential Supervision and Product Standards) Regulations The insurer does not provide indemnity to the insured under this policy for any claim, defence costs or legal fees or any other cost or expense arising from or in connection with: 4.1 Asbestos any actual or alleged liability whatsoever for any claim or claims in respect of loss or losses directly or indirectly arising out of, resulting from, in consequence of, contributed to or aggravated by asbestos in whatever form or quantity or any materials containing asbestos in whatever form or quantity. However, this exclusion shall not apply to any claim arising from the treatment of a person or persons as a result of an illness or condition in any way involving asbestos. 4.2 Breach of conditions of registration the insured, or a person contracted by the insured or any other person, being in breach of terms or conditions imposed upon their registration or in breach of any undertaking or limitation on their registration. 4.3 Clinical trial any actual or alleged liability whatsoever from a clinical trial or participation in a clinical trial by the insured, unless the insurer has agreed in writing to provide such cover and such agreement is specified in the policy schedule. 4.4 Contagious diseases any actual or alleged liability whatsoever from the transmission to a patient, of a contagious disease or virus of any kind, carried by the insured or any Private hospital Medical Indemnity Insurance Policy 3

6 person providing services to the business, except as provided by clause Contractual liability any actual or alleged liability whatsoever in relation to liability assumed by contract, or a waiver, guarantee or warranty, unless liability would have otherwise attached at law. 4.6 Criminal or dishonest acts any actual or alleged fraudulent, criminal, wilful, malicious or dishonest act, error omission of the insured. 4.7 Deductible the deductible stated in the policy schedule. 4.8 Defamation any actual or alleged liability whatsoever from defamation. 4.9 Discriminatory conduct actual or alleged discriminatory conduct or misconduct of whatever nature by the insured, or any person contracted by the insured Duties as directors, partners or officer any actual or alleged liability whatsoever from a breach by the insured of any of its or his or her duties as a director, officer, partner, office bearer or trustee Fines, penalties or punitive damages any fines, penalties or punitive, exemplary, aggravated or liquidated damages Equipment failure any actual or alleged liability whatsoever from the fault of any equipment or machinery or infrastructure used in the business where such equipment or machinery or infrastructure was not used or maintained in accordance with any requirement of the manufacturer Employment or contractor disputes any dispute or matter between the insured and an employee or any person contracted by the insured Healthcare with no physical examination any healthcare provided over the telephone, internet, online or by video conference, or from the playing of a recording device (such as a DVD or CD player), unless it is preceded by a physical medical examination of the patient by the insured or in the case of the optional extensions in clause 3 by the person mentioned in the extension, or is in accordance with any relevant Australian Medical Association or medical college guidelines Infringement of intellectual property rights any actual or alleged liability whatsoever from infringement of copyright, trademark, patent or registered design except as provided by clause Insolvency any actual or alleged liability whatsoever arising from or attributable to the insolvency of the insured Insured v Insured a claim initiated by the insured or any entity owned, operated or controlled by the insured, or which owns, operates and controls the insured, except for a: cross claim of a third party claim otherwise insured under this policy; or claim by the insured in the insured s capacity as a patient of the business Intoxication or under the influence any actual or alleged breach of duty or obligation by the insured that is attributable to that insured being under the influence of any drug, alcohol, intoxicant, narcotic or illegal substance Investment or sale of property any actual or alleged liability whatsoever from the purchase or sale of any property or investment of any type, including but not limited to hedging or trading Known circumstances, prior matters or prior to retroactive date any: act, error or omission, fact, circumstance or healthcare provided or that occurred prior to the retroactive date; or act, error or omission, fact or circumstance which should have been notified to the insurer in the application form or otherwise in accordance with the duty of disclosure; or fact or circumstance which the insured notified to the insurer or to another insurer before the period of insurance; or a known circumstance Loss of money, negotiable instruments or precious metals the loss of money, precious metal, precious or semi-precious gemstones, negotiable instruments, including shares, bearer bonds, coupons, stamps, bank or currency notes, belonging to the insured or for which the insured is responsible as a result of a criminal, deliberate, wilful, dishonest or fraudulent act, error or omission by the insured. Private hospital Medical Indemnity Insurance Policy 4

7 4.22 Motor vehicles, aircraft and watercraft any actual or alleged liability whatsoever from the ownership or use by the insured of vehicles, aircraft or watercraft Outside jurisdictional or territorial limits any actual or alleged liability or enforcement proceedings whatsoever in respect of: an act or omission that occurred outside of the Commonwealth of Australia; or the subject of court or tribunal proceedings outside of the Commonwealth of Australia, or any court or tribunal in Australia which is applying a law of a country other than the Commonwealth of Australia Outside scope of duties any actual or alleged liability arising from an actual or alleged breach of duty or obligation by an employee or a person engaged by the insured where the actual or alleged breach is outside the scope of the employee s or a person engaged by the insured s duties or obligations Pollution any actual or alleged liability arising from the discharge, dispersal, release or escape of smoke, vapours, soot, fumes, acid, alkalis, toxic chemicals, liquids or gases waste material or other irritants contaminants or pollutants into or upon land, the atmosphere or any water course or body of water Product liability any actual or alleged liability that: arises in any way out of the manufacture, distribution or sale of any goods or products; or arises in any way out of or in connection with the provision of services or advice in relation to the research, design, development, manufacture, distribution or sale of goods or products or potential goods or products Property damage any actual or alleged loss or damage to any property, or any loss or damage which results from that loss or damage to property or loss of use of property Public liability any actual or alleged liability whatsoever for the ownership, use or occupation or state of any premises or anything done or omitted to be done in respect of the state of any premises Public patients otherwise indemnified any actual or alleged liability whatsoever for a public patient where the insured is entitled to be indemnified by a hospital, area health service or government scheme Radioactive materials any actual or alleged liability whatsoever for any claim or claims in respect of loss or losses directly or indirectly arising out of, resulting from the use of nuclear reactors such as atomic piles, particle accelerators or generators or similar devices; or the use, handling or transportation of radioactive materials; or the use, handling or transportation of any weapon of war or explosive device employing nuclear fission or fusion The above exclusions shall not apply to: (e) nuclear medicine, radiation therapy or radiology; or any claim arising from the treatment of a person or persons as a result of an event specified in sub-clauses, and above Requisite qualifications any claim or matter where the insured or a person engaged or contracted by the insured, or a person whose services are supplied to the insured did not hold at all relevant times the requisite qualifications, authorisations or licences, or were not appropriately registered in the state or territory in which they operate, to provide their services in relation to the business Sexual harassment or misconduct actual or alleged sexual harassment or any form of sexual misconduct or actual or attempted sexual relations by the insured, or any person contracted by the insured, whether it relates to medical treatment or does not relate to medical treatment Terrorism any liability, loss, damage or expense of whatsoever nature directly or indirectly caused by, resulting from, happening through or in connection with any act of terrorism, regardless of any other cause contributing concurrently or in any other sequence to the loss, damage or expense. For the purpose of this exclusion, an act of terrorism includes any act, or preparation in respect of action, or threat of action designed to influence the government de jure or de facto of any nation or any political division thereof, or in pursuit of political, religious, ideological or similar purposes to intimidate the public or a section of the public of any nation by any person or group(s) of persons whether acting alone or on behalf of or in connection with any organisation(s) or government(s) de jure or de facto. Private hospital Medical Indemnity Insurance Policy 5

8 However this exclusion shall not apply to a claim arising from the treatment of a person or persons affected by any act of terrorism as defined above Trade practices breaches a breach or alleged breach of the Trade Practices Act 1974 (Cth) or similar state or territory fair trading legislation except as provided by clause Uninsured medical practitioners or contractors a claim or matter involving a medical practitioner, or a person contracted by the insured who provides services relating to healthcare (such as a nurse), who did not hold valid and current professional indemnity insurance at the time of the healthcare incident Unsupervised midwife any actual or alleged liability arising from the actions of an employed or other midwife whether registered or not, who was not being directed or supervised by a medical practitioner specialising in obstetrics in the ante-natal care of a woman or child or delivery of a child; or where that midwife was not operating under and complying with the terms of a collaborative care arrangement with such a medical practitioner War Any actual or alleged liability, loss, damage or expense of whatsoever nature directly or indirectly caused by, resulting from or in connection with any of the following: war, invasion, act of foreign enemy, hostilities or warlike operations (whether war be declared or not), civil war; mutiny, civil commotion assuming the proportions of or amounting to a popular rising, military rising, insurrection, rebellion, revolution, military or usurped power. However this exclusion shall not apply to any claim arising from the treatment of a person or persons affected by any occurrence of an event named in sub-clauses and above Workers compensation any actual or alleged liability whatsoever for bodily injury, mental injury, disease or death to any person: incurred, contracted or occurring while under a contract of service or internship or apprenticeship with the insured; or for any breach of any obligation owed by the insured as an employer to any employee or to any persons included in the definition of employee or deemed to be an employee under any workers compensation law or scheme and/or similar legislation or arrangement; or any claim in respect of which compensation is available under any workers compensation law or scheme and/ or similar legislation or arrangement or would have been available had the insured complied at all material times with the law, scheme and or similar legislation or arrangement. However, this exclusion shall not apply to any claim arising out of any personal injury of an employee or contractor which is caused by any negligent act, error or omission of the insured, in relation to medical treatment of such a person in his or her capacity as a patient of the insured. 5. Conduct of claims 5.1 Conduct of claims or matters that are below the deductible where the insurer does not provide a claims management service The insured agrees that the insurer has the right of conduct of all claims or matters against the insured, subject to below If the insured reasonably believes that the total value of claim or matter (including compensation payments and legal costs) will fall below the deductible, then the insured can take conduct of the claim or matter as long as the total value remains below the deductible If the insured has conduct of the claim or matter then the following conditions apply: (e) the insured may settle the claim or matter without the insurer s consent provided the settlement amount (including compensation payments and legal costs) will fall below the deductible; the insured agrees to act reasonably in relation to the claim or matter and not to do anything that will increase the quantum of the claim or do anything to prejudice the insurers position in relation to the claim or matter; if a matter becomes litigated or the insured uses lawyers to manage unlitigated claims, the insured will only engage lawyers skilled and experienced in this area and will obtain the insurer s approval for the use of a legal firm or firms; the insured must respond to all reasonable requests for information (including legal advices) that the insurer asks for in relation to the claim or matter; if the insured becomes aware that the claim or matter will exhaust the deductible the insured: (i) must notify the insurer as soon as practicable; Private hospital Medical Indemnity Insurance Policy 6

9 (f) (ii) (iii) agrees that the insurer has right to take over conduct of the claim or matter; and must provide all necessary information and assistance to the insurer reasonably required to take over conduct of the claim or matter. Once the insurer has taken over conduct of the claim formerly managed by the insured: (i) (ii) clause 5.3 will apply to that claim or matter; and if the deductible has not been exhausted clause will apply to the outstanding deductible amount. 5.2 Conduct of claims that are below the deductible where the insurer provides a claims management service If the insured has entered into a claims management agreement with the insurer for claims or matters that fall below the deductible then the claims or matters will be managed in accordance with clauses to The insured will not attempt to manage any claim or matter, beyond referring it to the insurer immediately on receipt or becoming aware of the claim. 5.3 Conduct of claims which exceed the deductible Once the deductible has been paid in full to the insurer, or the insured has incurred costs up to the deductible, then the insurer has right of conduct of the claim or matter, the insured agrees that the insurer is able to: appoint of the lawyer, any other legal representative or other person of the insurer s choice to conduct the defence of the claim or matter; defend or settle the claim or matter as the insurer thinks fit; and to take steps to above in the insured s name The insurer will appoint the lawyer or other person to provide services to the insurer for the benefit of the insured. When the insurer appoints the lawyer or other person, the insurer does so in the insurer s own capacity and not as agent for the insured The lawyer or other person appointed by the insurer supplies services to the insurer and not to the insured for the purposes of the Goods and Services Tax (GST). The insurer is entitled to claim a GST input tax credit on services supplied by the lawyer or other person The insured must cooperate with the insurer, the lawyer and other person in resolving or defending the matter in a satisfactory, timely and cost effective way. In particular the insured must at its own expense: (e) provide a full and truthful account of the relevant facts; provide any relevant information or documents in the insured s possession or obtain any other relevant information or documents that the insured can; execute any documents that they are reasonably asked to do so; make available its employees, contractors and officers; and attend such court hearings, meetings and conferences as reasonably required for this purpose at the insured s expense The following conditions apply to the payment of the deductible set out in the policy schedule: the insured shall bear the amount of the deductible at the insured s own risk in respect of the claim or matter; where the insurer has paid all or part of any deductible in respect of a claim or matter on the insured s behalf the insured shall within 14 days of a request from the insurer for reimbursement of the amount the insurer has paid, reimburse the insurer for that amount; in the event that the insured fails to reimburse the insurer in response to a request under above: (i) (ii) 6. General conditions the sum requested shall, at the expiration of 14 days after the request, become a debt due and payable to the insurer; and if such failure leads to an increase in the sum required to settle a claim or matter and/or an increase in defence costs, the insurer s liability under the policy shall not extend to that increase in the amount required to settle the claim or matter and/or any increase in defence costs. 6.1 Notification The insured must give written notice to the insurer of any claim(s), matters, prosecutions, inquiries or complaints made against the insured as soon as practicable and in any case, during the period of insurance The insured must report to the insurer immediately any healthcare incident that: involves a brain injury with significant cognitive, behavioural or physical residual Private hospital Medical Indemnity Insurance Policy 7

10 damage, including infants that are born in this condition; or involves quadriplegia or paraplegia; or involves a fatality or a diminished life expectancy of a patient; or where the insured reasonably believes the matter could exceed the deductible On a quarterly basis, the insured shall provide the insurer with a summary of all incidents, facts or circumstances that may result in a claim under this policy, including the following details: (e) (f) (g) (h) (i) incident number; location of incident/business unit; incident date; date of notification to the business unit/ date of notification to the insured s claims handling unit; description of the circumstances including the names and titles of the persons involved (including the speciality of the medical practitioner/s involved in the matter); name of claimant/claimants/patient/s; prognosis of the patient/s; the amount of legal costs incurred by the insured (if any); and any other information which may be reasonably requested by the insurer. 6.2 Defending a matter that the insurer wants to settle The insured may defend any claim or matter which the insurer believes should be settled, but the insurer will not be liable for more than: the amount the insurer would have been required to pay if it had been settled or resolved as the insurer believed it could or should have been settled or resolved; and the defence costs and/or legal fees the insurer has incurred up to the date the insurer advises the insured that the matter should be settled; and the legal fees that the insured incurs after the insurer indicated to the insured in writing that the matter should be settled, only if the insured successfully defends the claim or matter. 6.3 Appeals If the insured is dissatisfied with any decision made in respect of a claim or matter by a court or other decision-making body and the insured seeks to appeal against that decision, then the insured must request the insurer s consent prior to the appeal within seven (7) business days after the date of the decision The application must be in writing and must fully set out the reasons for bringing an appeal. The insurer will inform the insured in writing if the insurer consents to the appeal If the insurer does not consent to the bringing of an appeal, the insured may conduct the appeal at the insured s own expense If the insurer appeals from a decision in a claim or matter without the insurer s consent: the insurer will not pay any further amount than the insurer has already paid or been ordered by a court or other decision-making body to pay, whether the appeal is successful or not; and if the appeal is successful and the insured is, entitled to a refund of any money that the insurer paid to the claimant or other party, then the insured must pay the insurer that amount after deducting the costs of the appeal incurred by the insured (net of GST if the insured are registered for GST). 6.4 Subrogation and other insurance If the insurer makes a payment under this policy the insurer is subrogated to the insured s rights of contribution, recovery and indemnity without the need for the insured s consent. The insured must always act to secure and preserve all rights of recovery, contribution and indemnity If the insured makes a claim for indemnity under this policy, then at the time of making such a claim the insured: must tell the insurer in writing about any other insurance or entitlement to indemnity which also covers the insured for the same or similar circumstances of the claim or matter, including any medical indemnity insurance held by the insured. 6.5 Requirements for employees and contractors The insured must ensure that during the period of insurance that each employee: holds the requisite qualifications, authorisations, licences, and are appropriately registered by the Commonwealth or the state or territory in which they operate, to provide their services in relation to the business; and if the employee is a medical practitioner he or she holds his or her own valid and current medical indemnity insurance; and The requirement in sub-clause above does not extend to those resident medical officers Private hospital Medical Indemnity Insurance Policy 8

11 in respect of whom the optional cover in clause 3 has been taken out The insured must ensure that at all times during the period of insurance that any person contracted or engaged by the insured who is a medical practitioner: holds the requisite qualifications, authorisations, licences, and are appropriately registered by the Commonwealth or the state or territory in which they operate, to provide their services in relation to the business; and holds valid and current medical indemnity insurance The insured must ensure that during the period of insurance that any person contracted by the insured who is not a medical practitioner, but provides services relating to healthcare in a professional capacity such as a nurse, physiotherapist or other healthcare professional that they: hold the requisite qualifications, authorisations, licences, and/or are appropriately registered by the Commonwealth or in the state or territory in which they operate, to provide their services in relation to the business; and hold valid and current professional indemnity insurance The insured must maintain accurate records and obtain copies of such qualifications, authorisations, licences, registrations and insurances mentioned in clauses 6.5.1, and above during the currency of this policy and retain these records and copies for at least seven years from the expiry date of this policy The insured must ensure that adequate standards of medical record keeping take place within its business and that such records are kept safe and retained for the statutory periods required for such records. 6.6 Material change in risk The insured must notify the insurer in writing as soon as reasonably practicable (but within 30 days) after the insured becomes aware of any change that: materially varies a matter relevant to the risk; or alters the risk covered by this policy Failure to notify the insurer of any material change to risk may mean that the insurer is not liable under this policy to indemnify the insured for a claim or matter. This notification includes, but is not limited to, the following matters: any merger between the insured and another company or business, any acquisition by the insured of another company or business, or if (e) (f) (g) the insured is acquired by another company or business; the establishment by the insured of a subsidiary company or another branch office; addition of a new premises, or the extension or expansion of the business premises; the bankruptcy, administration, receivership, liquidation, appointment of a receiver or bankruptcy or winding-up proceedings that relate to the insured; any material change in the nature of the business or of the services provided by the insured in relation to the business; an increase by more than 10% of those declared in the proposal in relation to the number of: (i) (ii) (iii) (iv) beds operated by the insured; employees of the insured; contractors engaged by the insured; or medical practitioners engaged by the insured. the cancellation or modification of, or failure to maintain, accreditation with the Australian council of healthcare standards (or other similar body) of any hospital, clinic or other establishment forming part of, or operated by, the business. 6.7 Severability and non-imputation Where this policy insures more than one party: any non disclosure or misrepresentation, whether fraudulent or otherwise, any breach of term or condition of the policy, or any fraud or other act, error or omission or default by one party (collectively a failure ) will not affect any other party insured under this policy provided that: (i) (ii) the failure was not made with any involvement or knowledge of the second mentioned party; and as soon as practicable after the second mentioned party becoming aware of any such failure, the second mentioned party advises the insurer in writing within the period of insurance of all of the relevant circumstances of the failure; and this policy operates, except in relation to limits, in the same manner as if there were a separate policy of insurance covering each party. Private hospital Medical Indemnity Insurance Policy 9

12 6.8 Cancellation The insured may cancel this policy at any time by notice in writing in which case the insurer will refund the premium on a pro rata basis, less two (2) months premium. If the insured has notified a claim, incident, inquiry or matter during the period of insurance there will be no pro rata refund The insurer may cancel this policy by giving the insured the written notice required by law: if the insured has not paid the premium within thirty (30) days of the period of insurance commencing; or in the event that the insured is paying via instalments and an instalment remains unpaid for more than one (1) month; or if the insured is in breach of any of the conditions of this policy; or for any other reason available to the insurer under the Insurance Contracts Act 1984 (Cth) or otherwise at law. 6.9 Payment of premium The insured will not be covered by this policy if the insured does not pay the premium for this policy or for any earlier policy. It is a condition of this policy that the insured pay the current premium and any premium that remains outstanding from any prior year s policy Loss prevention and mitigation The insured must: use all reasonable measures to: (i) avoid or reduce the chance of any claim, inquiry or matter being made; and (ii) reduce the insured s liability arising from a claim, inquiry or matter; and not pursue any course of action which the insured knows or ought reasonably know will result in a claim, inquiry or matter being made against the insured Governing Law Any interpretation of this policy relating to its construction, validity or operation shall be made in accordance with the laws of the Australian state or territory in which it is issued. The parties to this policy will submit to the exclusive jurisdiction of the courts of that state or territory in which the policy is issued Currency All premiums, limits, retentions and other amounts under this policy are expressed and payable in Australian currency GST The premium is exclusive of GST. The GST component will be reflected in the policy schedule; The limit of indemnity and sub-limit of indemnity are GST exclusive. Private hospital Medical Indemnity Insurance Policy 10

13 7. Policy definitions In this policy: Defined term application form business claim claims management agreement deductible defence costs documents duty of disclosure employee Good Samaritan act healthcare healthcare incident inquiry the insured Meaning Any document comprising all or part of the insured s application for, or renewal of, this policy. The provision of healthcare by the business as specified in the policy schedule. A demand, an assertion of a right or an intimation of an intention, first brought against the insured and notified to the insurer in writing during the period of insurance, arising directly in connection with healthcare provided in the business. An agreement between the insured and insurer that the insurer will manage the defence or resolution of all claims or matters below the insured s deductible for the insured. The deductible is the sum specified in the policy schedule which the insured must pay before there is any liability under this policy. The limit of indemnity and the sub-limit of indemnity only apply after the deductible has been exhausted. Legal costs and disbursements, including the cost of the lawyer or other person, which: are reasonably and necessarily incurred in the investigation, defence or settlement of a claim or matter. A deed, a will, an agreement, a map, a plan, a book, a letter, a policy, a certificate, a form and a document of any nature whether written, printed or reproduced by any method including computer records and electronic data in the possession or control of the insured but does not include money or negotiable instruments. Has the same meaning given to that expression in the application form. The following are employees to the extent that they are not engaged in the provision of services relating to healthcare in their capacity as a medical practitioner a past, present or future: principal, partner, director, officer, employee, volunteer, or student; or a past, present or future member of the insured s ethics or advisory committee or other committee the insured is legally required to have; or the representatives of the estates of persons listed above in and above. A healthcare act that is performed by the insured in coming to the aid of a person in an emergency or accident that is necessary to stabilise that person or to prepare that person for transfer, without expectation of payment or other consideration. Any care, treatment, advice, service or goods provided by or on behalf of the insured in connection with the business in respect of the physical or mental health of a patient under the insured s care. Any act, error or omission which adversely affects a patient, or an unexpected complication or injury occurring to a patient under the insured s care as a result of or during the provision of healthcare. Defending a prosecution, or responding to an inquest, investigation, audit or complaint (including an allegation of unlawful conduct, misconduct or unsatisfactory conduct), brought by a registration board, tribunal, complaints unit, criminal court or coronial court, or by a statutory body empowered by law but does not include any internal hospital inquiry or proceeding. The legal entity named in the schedule and any: subsidiary of the insured; or any other separate legal entity, specified in the policy schedule as the insured; or an employee of the insured who is not a medical practitioner or a healthcare professional required to be registered by law in order to practice subject to clause 2.11, or any entity referred to in and above. the insurer Avant Insurance Limited ABN and AFS Licence Private hospital Medical Indemnity Insurance Policy 11

14 known circumstance the lawyer legal fees limit of indemnity medical practitioner other person period of insurance policy policy schedule premium public patient resident medical officer retroactive date sub-limit of indemnity A known circumstance means any fact, situation or circumstance which might result in a person making a claim or allegation against the insured in respect of a liability, that might be covered by this policy; and either: the insured knew of such a fact, situation or circumstance before this policy commenced; or a reasonable person in the insured s position before this policy commenced would have considered that such a fact, situation or circumstance might result in such a claim or allegation. The legal practitioner or practitioners engaged by the insurer to provide legal services to it. The necessary and reasonable legal costs of investigating, defending or resolving any legal proceedings or inquiry made against the insured and covered by this policy. This does not include legal costs awarded against an insured, penalties, or fines or damages awarded against an insured, or amounts uninsurable by law, or the payment of compensation. The maximum sum that is payable by the insurer as set out in the policy schedule. The limit of indemnity does not apply to a type of liability subject to a sub-limit of indemnity. An individual registered or licensed as a medical practitioner in accordance with the laws of the Commonwealth; or state or territory laws of Australia that provides for the registration or licensing of medical practitioners. A person including, but not limited to: an accountant, an actuary, an expert witness, a witness as to fact, or any other person required to assist the insurer in any matter covered by this policy. The period of insurance specified in the policy schedule. Is comprised of: the terms, conditions, definitions and exclusions set out in this policy and the current policy schedule; any endorsement attached to and forming part of this document, either at the commencement of the policy or during the period of insurance; and the application form. The policy schedule to the policy from time to time. The premium set out in the policy schedule. A patient whose medical treatment is provided or funded by or on behalf of the Australian Federal Government or a state or territory of Australia. A medical practitioner acting in a non-specialist capacity engaged to perform duties normally undertaken by a resident medical officer including: the initial assessment of patients and treatment under specialist direction as appropriate; or ensuring communication with specialists, nursing and other relevant staff; or co-ordinating and facilitating diagnosis, management, medical care and treatment and discharge planning for patients as directed by a specialist. The retroactive date specified in the policy schedule. The retroactive date is the date on or after which an incident must have occurred to constitute a valid claim under this policy. The sub-limit of indemnity comprises a lesser limit of cover within the overall limit of indemnity for a designated type of liability, as specified in the policy schedule. Where a sub-limit of indemnity applies it replaces the limit of indemnity. Private hospital Medical Indemnity Insurance Policy 12

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16 Avant Insurance Limited ABN AFSL Registered Office Level 28 HSBC Centre 580 George Street Sydney NSW 2000 PO Box 746 Queen Victoria Building Sydney NSW 1230 DX Sydney Downtown Website Telephone Facsimile Freecall Freefax A subsidiary of Avant Mutual Group Limited ABN V1.0 May 2010