The Health and Social Care Act 2012 has led to NHS contracts going to private providers whose insurance arrangements are often opaque. My colleagues spend hours and write endless letters trying to identify the correct defendant in our client’s cases.
The fragmentation of the NHS has led to the child of Claire Secker having to wait for Medical Negligence compensation in a case where liability has already been admitted.
"Clare Secker, 19, died of Bronchopneumonia in December 2008 after a nurse working for the privately-run telephone service told her parents to give her Paracetamol and fluids." The private out-of-hours service and the successor company, Care UK, are refusing to pay out any clinical negligence compensation.
"The nurse claims she does not need to pay out as her employment contract specifically states that the company had insurance in place "to indemnify … for any claim arising from any wrongful act committed by … any employee while carrying out their contractual obligations". But Harmoni says its insurance excludes responsibility for negligence by nurses."
The family are caught up in a terrible legal wrangle which is entirely due to the outsourcing of NHS services and the failure to have rigorous insurance agreements in place if things go wrong.
All of my colleagues and I have had similar experiences with acute NHS Trust, PCTs and private providers. Little thought seems to be given by the NHS Lawyers to this issue when the contracts are drawn up with private medical providers.
I predict it will only be a matter of time before a serious claim, worth six or seven figures, will fall through the indemnity gap and leave victims of medical negligence with no insurance to meet their claim at all.
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