Should you tell a patient that you are seeking advice from your indemnity provider?
In short, the answer is NO, unless you have been asked by your indemnity provider to do this. MDDUS has recently seen increasing numbers of complaints cases in which either the Practice Manager or the dental practitioner informs the patient that the clinician is seeking advice from their indemnity provider and puts this is writing in an acknowledgement to the patient or records this information in the patient’s clinical records. Seeking advice from an indemnity provider is not a good reason for explaining to a patient a delay in managing their complaint.
Why is this not a good idea?
This is not a good idea for 2 reasons. Firstly, any advice that you seek and receive from your indemnity provider is confidential to you. Informing the patient that you are seeking advice poses a number of problems. It increases patient expectations of a financial payment. Secondly, it risks a further complaint by the patient that you may be breaching their confidentiality if you send their clinical records to your indemnity provider – this is why clinical records must be redacted (anonymised) if you are seeking advice regarding the handling of a complaint. Otherwise, you are breaching UK GDPR. This does not apply if the patient is raising a clinical negligence claim or if the GDC is involved, as there are exceptions within the legislation covering these scenarios. Telling a patient that you are seeking advice can make what was a fairly simple complaint to deal with, a much more complex situation, with patients often demanding to see details of the confidential advice provided by the DDO, under threat of GDC referral.
Should you record details of your discussions with your indemnity provider in the patient’s clinical records?
This is not advisable. If the patient or their solicitor makes a subject access request seeking access to the records under UK GDPR, then the confidential advice that you have received is made available to the patient (and their solicitor). This can make life very difficult for the clinician and adversely affects the ability of the indemnity organisation to manage a claim.
Should you offer to pay the costs of further treatment at another practice or otherwise settle a claim before speaking to your DDO?
Again, this is not a good idea. Firstly, you could very well be shooting yourself in the foot. Without a full understanding of how clinical negligence claims are handled legally, your offer could be seen as an admission of liability, where there may not be any legal liability. Much better to allow your indemnity provider to assess the matter and then advise you on how to proceed.
Additionally, remedial treatment costs or the settlement of claims without prior authorisation could impact the assistance that your indemnity provider provides to you. The article of association/member agreement of a mutual organisation or the tight wording of an insurance contact usually prohibits a clinician from taking such steps, unless you have sought advice and been advised to proceed on this basis. Once such an offer is made, it is very difficult for that to be rescinded without risk to the clinician.
MDDUS works hard for its members, and we request our member’s help in helping them. We are here to help and advise members at any time. Please do make use of that help when you need it. We do not take calls into account when setting member fees, so please do give us a call and avoid shooting yourself in the foot.
Helen Kaney
BDS LLB Dip LP MBA FCGent
Senior Dento-legal Adviser
Please contact MDDUS to discuss a particular case or query. Email us on advice@mddus.com
This page was correct at the time of publication. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.
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