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What Does the Future Hold for
Medical Professional Liability

Thursday, October 21, 2021 at 2:00 ET

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Inside Medical Liability

Fourth Quarter 2020




COVID-19 and MPL: The View from England

Rising claims and claim severity test providers, hospitals, insurers

By By Mark Ashley, Simon Wortlet, and Simon Perkin


The COVID-19 pandemic has created challenges for healthcare in England just as it has for systems around the world. While many of these issues are global, some are specific to England due to the structure of its healthcare system.

Healthcare in the United Kingdom is dominated by the National Health Service (NHS), a taxpayer-funded public health system. The NHS is mainly free at the point of delivery. In this aspect it differs significantly from the United States, where healthcare is mainly a private industry that includes government programs such as Medicare and Medicaid. However, there is a private, commercial aspect to healthcare in England that operates in a model more similar to the American model.

As a predominantly national system, healthcare is organized in a system that divides responsibility between commissioning groups that are responsible for managing and operating healthcare systems and the providers that deliver the actual care. Medical professional liability coverage for NHS-funded care is provided by an operating arm of the NHS, while commercial and some elective care is provided by defense union organizations and private insurers.

Within this environment, there is significant uncertainty brought about by the ongoing COVID-19 pandemic. The emergencies caused by the pandemic have created the need for temporary supports and workaround in the usual arrangements for the delivery of medical care and medical professional liability coverage.

Healthcare in the U.K.

In England the NHS is clearly divided between local and national commissioning groups and the actual providers who work with patients. Commissioning groups, which operate on the local and national levels, contract with clinicians for the delivery of medical services. These providers may be part of the NHS or they may be private, commercial healthcare organizations. For example, one of the responsibilities of commissioning groups is to ensure healthcare screening for patients in specific areas. Therefore, the local commissioning group will award healthcare screening contracts for local patients to a local NHS hospital, a commercial organization, or both. While there are important structural variations between the different nations of the U.K., those distinctions are beyond the scope of this article, which focuses exclusively on England.

Outside of the NHS is the commercial healthcare sector, funded through private insurance and direct payments. The sector is typically used for elective treatment and is provided by independent practitioners (usually senior doctors) operating from independent hospitals, with those hospitals employing ancillary clinical staff such as nurses and junior doctors.

Managing clinical risk

Medical professional liability coverage for NHS-funded care is provided by a body within the NHS called NHS Resolution. This organization operates a range of programs, the largest of which is the Clinical Negligence Scheme for Trusts (CNST). In addition, NHS Resolution is very active in risk mitigation through ongoing communications regarding themes and lessons learned from claims to its members and the wider healthcare sector. CNST is a risk-pooling system whereby members make an annual contribution largely based on their activity type.

CNST indemnifies NHS organizations and also offers indemnity for NHS activities undertaken by commercial organizations.

In the commercial sector, the independent practitioners and the independent hospitals must maintain their own malpractice insurance. Frequently, a hospital insurance policy will cover the ancillary staff. Many practitioners are members of defense unions such as the Medical Protection Society Limited or the Medical and Dental Defence Union of Scotland, which offer discretionary coverage. Some practitioners, and most hospitals, obtain insurance on the open market usually on a claims-made basis.

Following recent scandals, concerns have been raised about the adequacy of existing indemnity arrangements for the commercial sector. Much discussion has occurred since these recent scandals regarding the potential for injured patients to go uncompensated owing to gaps or limits in coverage. Regulatory and market reforms may yet follow.

Practical effects of Covid-19 on the healthcare system

The pandemic has, of course, resulted in a huge challenge for the NHS. A key part of meeting that challenge has involved increasing capacity. Medical and nursing staff who have recently left healthcare, including retirees, have been encouraged to return, and many have answered the call. Large temporary hospitals known as Nightingale Hospitals have been built. Furthermore, as of late March 2020, the NHS contracted with the commercial sector to temporarily transfer all independent hospital capacity to the NHS. This included around 8,000 beds and 20,000 staff including nurses and junior doctors.

Indemnity arrangements, particularly in the public sector, have developed to reflect these challenges. NHS Resolution now also administers the Clinical Negligence Scheme for Coronavirus (CNSC), which is in effect gap coverage for public and commercial organizations that face medical liability claims arising from NHS-based work undertaken as a result of the pandemic.

Legal issues raised by COVID-19

The legal environment remains fundamentally unchanged. Those seeking compensation must show that there has been a breach of the duty of care and that this breach has caused them to suffer some identifiable harm. To take a simple example of a person who believes they have contracted COVID-19 owing to inadequate care taken by a doctor, that person’s claim would be likely to fail unless they could surmount the challenge of proving that they would not have contracted COVID-19 without the doctor’s negligence.

This simple example does not necessarily ring true in the field of employer liability. If a nurse who develops COVID-19 can demonstrate that there was inadequate provision of protective equipment in their working environment that resulted in COVID-19 exposure, this nurse stands a better chance of succeeding in their claim due to the peculiarities of the law relating to employers’ liability. These provisions do not exist in medical professional liability.

COVID-19 does, however, raise specific issues in medical liability. During the first wave of the pandemic in England, which occurred between March to July 2020, a great deal of nonemergency care was suspended. Patients waited longer for a wide variety of assessments and treatments. While patients waited, their conditions may have worsened. Unless the responsible doctor can demonstrate that appropriate care was taken to ensure that the patient’s condition was monitored during this period, he or she could face a compensation claim.

As the healthcare sector generally attempts to make up for lost time—particularly in the face of a second wave—there may be greater risk of medical errors due to the fact that much of the country’s healthcare providers have been working under considerable stress for months. This may in turn drive more patients to seek care in the commercial sector.

The pandemic is likely to cause an increase in damage awards, particularly for pecuniary losses. For example, if, as a result of negligence, a patient needs lifetime care and support at home provided by paid caregivers 24/7, there could be a major damage award. Such cases may increase due to the fact that caregivers, particularly in the elderly residential sector, have moved into care homes to self-isolate with their charges. There is a very strong case in this situation for caregivers to be paid a premium. Additional implications include the potential for enhanced awards to provide for the caregiver premiums.

Another example is where negligence increases a patient’s susceptibility, perhaps permanently, to injury or death from COVID19. This could occur if negligence caused damage to an internal organ. Before the pandemic, this patient may have been able to return to work full time. Now, however, they may need to self-isolate potentially for months until COVID-19 is under control in the U.K. These patients will experience larger loss of earnings, and should be compensated accordingly.

The future

Until such time as COVID-19 has been brought under control we can expect to see higher claims for damages, and significant risks around patients whose treatment has been delayed. There could also be more claims brought by employees against employers, and we can also expect to see claims brought relating to incorrectly taken or reported COVID-19 tests.

Against this backdrop the NHS continues to make significant use of the commercial sector, resulting in large liabilities resting with the public sector through CNST and CNSC. There are challenges, too, for the commercial sector, particularly around the hardening insurance market and cost of arranging indemnity coverage post COVID-19; but there are also opportunities as patients return— perhaps in ever greater numbers.

As in other countries, the post-pandemic medical professional liability environment continues to evolve. Regardless of how the coming months evolve, there is no doubt that changes are in store for the NHS and NHS commercial providers.

Mark Ashley
is a partner and clinical risk lawyer with DAC Beachcroft.

Simon Wortley
is a partner and location head for clinical risk in Manchester with DAC Beachcroft.

Simon Perkins
is a partner and medical malpractice lawyer with DAC Beachcroft.