No blame compensation

14 March, 2013 / Infocus

Negligence law and the law in relation to professional indemnity are changing fast. Conventionally, when a patient sues a general dental practitioner, it is for the patient to prove negligence and causation in order to obtain damages as a result of the negligent act or omission.

The No–Fault Compensation Review Group has recommended that the Government should consider establishing a scheme in clinical cases similar to the ’no blame’system in Sweden. It would appear currently that the scheme proposed by the Review Group has no eligibility criteria to filter claims or cap awards; that may result in a substantial increase in the cost of dealing with such claims. The proposal would nullify the necessity of the pursuer to prove negligence.

Ensuring that patients injured as a result of dental treatment are compensated appropriately without the need to go through a court process is to be commended. However, will the proposals just facilitate the paying out to patients who make a claim? The current reforms proposed by the court-appointed Personal Injury Users Group are very embryonic in development and further reform where negligence is sidelined will increase the number of litigants and place pressure on the premiums that dentists pay.

Patients will always have the right to litigate in the conventional sense; however, introducing a no-fault scheme will create an expensive two–tier system. Fortunately, factual and legal causation will always be required to be proved. A salutary lesson is found in New Zealand where, following the introduction of a no–fault scheme, the claims liability rose from $644 million to more than $2 billion in four years.

As of 25 October 2013, the UK regulator “must ensure that systems of professional liability insurance, or a guarantee or similar arrangement that is equivalent or essentially comparable as regards its purpose and which is appropriate to the nature and the extent of the risk, are in place for treatment provided on its territory”. This is the law as stated in European Directive 20/24/EU.

What this means for dentists is you must have in place malpractice insurance or a guarantee or something similar to a guarantee that covers patients’claims if they are made. If you are in doubt about what cover you really have, you should read your policy of insurance if you have one. If you do not have a policy of professional liability insurance, it begs the question: why not?

The differences between discretionary cover, full or partial, and a policy of insurance are vast. Please ensure you are fully covered in law for claims that may arise as a result of your practise of dentistry. There is no excuse for not having full cover or a guarantee for your work.

About the author

Neil Taylor BDS LLB Dip LP is a dentist (66597) and worked predominately in NHS dental practices in Glasgow for 13 years. He is also a solicitor in Scotland (29445), a former member of the Faculty of Advocates, head of dental services for TDS Ltd and loss adjuster for Hiscox Ltd.

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