The Sport and Exercise Medicine Professional Indemnity Scheme for doctors involved in the treatment of professional sportsmen and women

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1 The Sport and Exercise Medicine Professional Indemnity Scheme for doctors involved in the treatment of professional sportsmen and women UPDATED QUESTIONS & ANSWERS MARCH 2011 INTRODUCTION SEMPRIS was launched in August 2010 in response to the introduction of restrictive guidelines and the withdrawal of critical aspects of indemnity cover by the medical defence organizations (MDOs) for doctors treating professional sportsmen and women. In the course of developing the scheme, extensive advice, research and support was provided by medicolegal experts, doctors, underwriters, and sports bodies to ensure the terms and benefits of the scheme met their intended purpose. Namely, to provide some of the most comprehensive medico-legal support and indemnity protection from any insurer or medical defence organisation in the UK to include: 1. Damages, claimants costs and / or defence costs relating to a claim brought by a sport person s employer, club, agent, sponsor or event organiser in relation to alleged negligent treatment of a player. 2. Pre-signing medical assessments undertaken directly for clubs. 3. Treatment provided when travelling overseas with teams m standard cover for each and every claim subject to 20 million annual aggregate. Since launch, the scheme has been reviewed and compared extensively by the medical profession and independent lawyers acting for interested individuals, LLP s and companies. The response to these reviews has been unequivocally positive and supportive of SEMPRIS and in comparison, somewhat damning of the advocacy offered by one MDO to its members to use or rely upon Waiver or Hold Harmless letters for protection. It is a widely held legal opinion that a waiver letter is unlikely to provide a guarantee of protection or immunity. 1

2 It is important to emphasise that the scheme has been developed solely in response to the withdrawal of essential cover by the MDOs. Had it not been for the MDOs decision to withdraw or restrict cover, there would have been no need or purpose to create SEMPRIS. It is not an attempt to compete with the MDOs. The overriding feedback we have received is that the scheme meets its intended purpose head on and robustly addresses the shortfall in cover now offered by the MDOs. However, if doctors feel or believe that it does not fulfil its purpose or that the cover and terms are inappropriate or unacceptable, it is essential that the scheme understands and addresses these. Accordingly, we would welcome your comments. The following reflect the most commonly received questions to date together with answers. We hope these will assist doctors in addressing any questions they may have and provide the assurance that the scheme is here for the long term. WOULD I HAVE TO PAY RETROSPECTIVE PREMIUMS IF I LEFT AND RETURNED TO MDU / MPS or MDDUS? In the 1990s the St Paul was the leading commercial provider of medical malpractice insurance in the US. During the latter part of the 1990s the St Paul launched a UK medical indemnity product aimed at GPs and hospital specialists. In just over two years it only attracted a small number of doctors, despite an intense advertising and media campaign. The UK operation was deemed uneconomic and was closed down by St Paul. The policy did not provide any run off for the doctors it had indemnified and they were further obliged to buy retrospective cover from the MDU, MDDUS or MPS (MDOs) in order to rejoin these organisations. Significantly, at the time, all three MDOs were providing discretionary, occurrence based indemnity rather than claims made insurance cover. Occurrence based indemnity cover will always require retrospective premiums to be paid by members wishing to rejoin after a period of absence and that still remains the case with MPS and MDDUS, but notably, not the MDU. In 2000 the MDU took the decision to transfer away from occurrence based cover in favour of an insured, claims made policy this is the same basis as now provided by SEMPRIS. Unlike occurrence based cover, claims made policies do not generally require retrospective premiums to be paid when switching between one claims made policy/scheme and another, (i.e. from MDU to SEMPRIS and back to MDU) provided there has been no break in the members cover. In April 2008 the MPS took the decision to no longer offer indemnity to doctors employed by, or contracted to, a Premiership Football Club. It is probably therefore safe to assume that the majority, if not all, of the Premier League doctors are covered by the MDU on a claims made policy and as such would 2

3 not need to pay retrospective premiums in the event that SEMPRIS withdrew cover or withdrew from the market. For clarity; (When you move to SEMPRIS from the MDU, your SEMPRIS policy will cover you for claims arising from incidents which you were unaware of when you left the MDU but occurred during your period of MDU membership. Your SEMPRIS policy will have a retroactive date, which will be the date when you first started continuous "claims made" cover with the MDU. For many SEMPRIS members, the retroactive date will be 2000 which is when the MDU first introduced claims made policies, provided there has been unbroken membership of the MDU since then. If you joined the MDU more recently, the retroactive date on your SEMPRIS policy will be the date you first had an MDU policy.) WHAT IS THE DIFFERENCE BETWEEN SEMPRIS AND THE ST PAUL? There are a number of fundamental distinctions between the St Paul and the development of SEMPRIS: SEMPRIS combines a wealth of experience and support from doctors, medico-legal advisers, insurers and sports governing bodies and has been developed specifically to provide indemnity that is not otherwise available from medical defence organisations (MDOs) in the UK. There was no such internal driver for the St Paul, simply a commercial attempt to compete head to head with the traditional MDOs - there was no perception of need amongst UK doctors. There is a real and genuine perception of need amongst UK doctors involved in the assessment, treatment and care of professional sportsmen and women for the cover provided by SEMPRIS. The concern to ensure appropriate cover is in place is echoed in equal terms by clubs and governing bodies of sport. SEMPRIS is a UK based scheme combining long established and reputable service providers, underpinned by the size and financial security (Standard & Poors, A+) (A.M Best, A) (Fitch Ratings, A) provided by Lloyds of London to underwriting syndicates such as Marketform and Argo (who underwrite the SEMPRIS scheme) There is, in addition, an established, long term responsibility and commitment to many major medical clients underwritten by Marketform not just to SEMPRIS. Unlike St Paul, SEMPRIS provides run-off cover. If you die during the period of Insurance, become permanently disabled or retire permanently from practice, an extended reporting period of two years is provided for you/your estate to continue to report incidents which occurred while you were a practising SEMPRIS policyholder but which were not previously notified. This extended reporting period will increase to five years provided that you have been a SEMPRIS Policyholder for at least two years. 3

4 HOW SECURE IS MARKETFORM AS THE LEAD UNDERWRITER OF SEMPRIS? Marketform is a market leader in medical malpractice insurance and is the preferred insurer of many professional and regulatory bodies for non US Medical Professional Liability insurance. In December 2007 American Financial Group Inc. (AFG) became the majority shareholder in Marketform Group Limited securing the company as a key international specialist insurer. Founded in 1989, Marketform is a UK & International specialist insurer operating in the Lloyd's market with subsidiary companies in Australia, Italy and Spain. Policy coverage is on claims made basis and is probably the widest available in the London market, including Good Samaritan acts. Marketform, as with all Lloyd's syndicates, benefit from Lloyd's central resources, including the Lloyd's brand, its network of global licences and the Central Fund. The Central Fund is available at the discretion of the Council of Lloyd's to meet any valid claim that cannot be met by the resources of any member. As all Lloyd's policies are ultimately backed by this common security, a single market rating can be applied to all syndicates. The current Insurer Financial Strength Ratings of the Lloyd's market are as follows: Standard & Poors A+ (Strong) A.M Best A (Excellent) Fitch Ratings A (Excellent) CLARIFICATION OF JURISDICTIONAL LIMITS The Territorial Limits of the SEMPRIS Policy are the EU countries; Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden. The countries listed above represent the current limits of the Policy. Cover will be considered for other countries on application, supported by details of the activity planned and duration of the trip abroad. To date, individual extensions have been granted for the following countries at no additional cost; Serbia, Ukraine, India, Bangladesh, Sri Lanka, West Indies, South Africa, Australia, and New Zealand. Cover provided by SEMPRIS under the jurisdictional limits is on a fully insured basis, not discretionary, as was the concern and case with the MDOs. Cover can also be requested and is available to include the US and Canada. IS IT POSSIBLE TO BACKDATE COVER? Yes, requests to backdate cover will be considered on an individual basis, subject to receipt of a signed no claims declaration for the intervening period. 4

5 HOW SOUND IS THE MEDICO-LEGAL ADVICE & ASSISTANCE PROVIDED BY SEMPRIS? SEMPRIS includes a 24/7 Medico-Legal Helpline including cover for all costs arising from GMC/disciplinary inquiries/complaints from ground up i.e. with no call on the policy excess. Medico-legal advice and assistance on all issues arising from professional practice are provided by TWG Resources. TWG is led by Dr Gerard Panting and Dr Sherry Williams, both of whom have over 20 years experience in all aspects of medical law, including clinical negligence claims, complaints procedures, GMC and NHS disciplinary procedures. Dr Gerard Panting MA, MB BS, FFFLM, DMJ - Qualified in medicine and with a Masters degree in Medical Law and Ethics, has over 20 years experience in clinical negligence litigation, complaints procedures, disciplinary processes and medical regulation in the UK. Gerard has previously held the posts of Head of UK Medical Services and Communications and Policy Director at the Medical Protection Society (MPS). Dr Sherry Williams MB BS, FFFLM, MFPHM, Barrister - Qualified in medicine and law, Sherry has more than 20 years experience of advising doctors on all aspects of the legal and regulatory aspects of professional practice. She is a Foundation Fellow of the Faculty of Forensic and Legal Medicine of the Royal College of Physicians and has previously held the posts of Head of Medical Services, Head of Membership Governance and Deputy Communications and Policy Director at the Medical Protection Society (MPS). WHY SHOULN T I USE A WAIVER OR HOLD HARMLESS LETTER INSTEAD? The view expressed by independent legal advisers is that a Waiver or hold harmless letter is unlikely to provide the level of guarantee of immunity sought by doctors in the event of a claim against them. The proposed wording provided by MDOs for such Waivers has generally been viewed as inappropriate or unacceptable by clubs because it specifically excludes the right of subrogation by a club or its insurers. Similarly, the wording offered by clubs to doctors has been viewed as inappropriate by doctors with the clubs insisting on retention of subrogation rights The MDU has indicated that the exclusion of third party claims under its policy will extend to exclude subrogated claims from other insurers this is a key area of exposure for doctors when undertaking or providing employed or contracted services to a club. WILL MY MDO PPROVIDE A PREMIUM REFUND IF I BREAK COVER WITH THEM AND JOIN SEMPRIS? Refunds have been made to members of SEMPRIS but it will depend on the MDO to which you belong and individual circumstances. We recommend that you contact your MDO to ask this question. We would add that as Mutual organisations the MDOs are obliged to treat all members equally and if the offer of 5

6 refund has been made to one, as it has, it should be made available to all. We will be pleased to advise further on this point. IS IT POSSIBLE TO INCLUDE PRACTICE STAFF UNDER A SEMPRIS POLICY? Practice staff can be included under a member s policy subject to a declaration in respect of each member of staff to be covered, outlining duties and responsibilities to the insured member. CAN SEMPRIS PROVIDE PRACTICE COVER FOR LLP s, AND COMPANIES Yes, and is already doing so with competitive terms. We welcome enquiries of this nature, recognising the growing number of practices/collectives that are specialising in the treatment of elite and professional sports persons. FURTHER INFORMATION OR QUESTIONS If you would like further information or would like to raise a question or query to a response that has been provided in this update, please do not hesitate to call or contact Neil Redman at Health Partners. Tel Mob Office neil.redman@healthpartnerseurope.com 6