Failure to pay out medical damages

The tragic case of Clive Worthington, who took his own life following difficulties with dental insurance, highlights the little-known problem of potential risks involved with indemnities provided by medical defence organisations.

Despite being awarded compensation of over £86,000 for negligent dental treatment and the resultant suffering, Mr Worthington did not receive a penny. This is because the dentist involved was covered by a discretionary mutual indemnity arrangement which, in the event, did not pay out. This type of indemnity cover, where needed, is standard for medical practitioners. Because of the difficulties that may be involved in this area it is essential to get advice at an early stage. We at Kingsley Napley specialise in dealing with issues surrounding indemnity and insurance in medical negligence claims.

Seeking treatment abroad

Mr Worthington, who died last September, had brought a legal claim against Dr Eszter Gombos for negligent implant treatment, having been left in significant pain. He had originally been treated by her in Europe and then subsequently in the UK. The General Dental Council (GDC) - the regulating body for dentists in the UK - found that there had been misconduct by Dr Gombos and Mr Worthington was later awarded compensation in his legal claim. Dr Gombos was a member of the Dental Defence Union, a specialist wing of The Medical Defence Union, a mutual company owned by its members and providing discretionary indemnity to them. However, the DDU did not pay. With a traditional insurance policy, this cannot normally happen.

The law (The Dentists Act 1984) was updated in 2005 to make it compulsory for dentists to have an indemnity arrangement providing ‘appropriate cover’ in order for them to practice in the UK. The Act states that the indemnity arrangement can be a policy of insurance, an arrangement for the purposes of indemnifying a person, or a combination of both. The GDC is responsible for registering dentists in the UK and considers that membership of a mutual defence organisation meets the legal requirement. However, membership of such organisations is not a policy of insurance – they have no obligation to pay out.

Fighting for compensation justice

Claimants in this situation are still entitled to their money but must try to get payment from the medical practitioner themselves. This is particularly difficult if the practitioner is not based in the UK. The situation is also awkward if a practitioner does not have the means to pay for any compensation owed. That was the case when the MDU did not provide full assistance to dentist Melvyn Meggitt. Mr Meggitt had in excess of 70 compensation claims brought against him but with no cover from the MDU for most of them and no means to pay himself, many claimants at the time went uncompensated. The Courts considered the issue and Mr Justice Newman stated that, as the MDU is not a public authority, the Courts had no power to review the decision not to cover.

Potential risks widespread

It must be stressed that the situation described here is not limited to dental claims. Generally, medical practitioners working within the NHS are covered for negligent acts leading to compensation by NHS Resolution, the body that deals with claims against the NHS. Recently, GPs have come under the umbrella of NHS Resolution, but dentists, surgeons and medical practitioners acting privately need their own indemnity cover, and where this is discretionary, financial assistance may not be provided. This could even be the case in high value spinal or brain injury cases, especially now that some spinal surgeons are not covered by the Medical Defence Union or the Medical Protection Society schemes and have taken out policies with insurers who have only recently entered this market.

In most cases defence organisations do in fact indemnify their members. The DDU says that it is rare that they are not able to support members and in recent years they have assisted well over 99.5% of those who have approached them.

Nonetheless, without either a change in the law requiring clear policies of insurance or another government intervention, this is a situation that will continue to occur. The government could perhaps initiate a fund to assist claimants left uncompensated, akin to the Motor Insurers’ Bureau (the ‘MIB’), which provides compensation for victims of accidents caused by uninsured or untraced drivers.

Clearly, it is vital to consider at the outset of a medical negligence case how a defendant medical practitioner is going to meet any claim and to review all of the options. Kingsley Napley are specialists at advising in this area.

FURTHER INFORMATION

If you have any questions regarding this blog, please contact James Bell or a member of the Medical Negligence and Personal Injury Practice, or call us on 020 7814 1200.

ABOUT THE AUTHOR

James Bell is the head of our Medical Negligence and Personal Injury practice and joined the firm in 2023 from Hodge, Jones & Allen. He has undertaken medical negligence cases for over 20 years.  Throughout his career James has dealt with a very wide range of cases concerning all types of negligence claims – delayed diagnosis cases, birth injuries, anaesthetic injuries, surgical errors,  GP and hospital negligence, all types of orthopaedic claims, including complex hip and knee replacement surgery claims and and all types of cancer cases.