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GPs warned over legal small print in PMS contract row

1 September 2009

Gareth Iacobucci reports that GPs have been advised to check the small print on their contractual insurance policies, after PMS practices involved in a PCT dispute learned they would not be covered if their case was referred to the NHS Litigation Authority.

Practices in Havering, Essex, were confident they would be covered if their dispute over PMS claw-backs went beyond local appeal, as their policy safeguarded against contractual disputes concerning ‘the purchase, hire, sale or provision of goods or services.’

However, they were informed by insurance firm Wesleyan, which took over the policies of hundreds of practices in 2002 when it acquired the BMA’s own insurance broker BMA services, that their case fell outside these parameters.

The firm has now been accused of selling inappropriate cover to GPs, and failing to clearly state that practices would not be covered if their contractual disputes progressed as far as the NHSLA.

One practice manager in Havering, who wished not to be named, said any contractual policy that didn’t cover GPs beyond local disputes was not suitable.

‘The contract doesn’t say that it won’t help you if you have to go to the NHSLA. If they’re selling legal insurance for a doctors’ surgery, and they know that that case has to be heard at the NHSLA, they should insure you for legal cover.

They added: ‘It seems very poor. They have sold us cover which is inappropriate. I bet there are lots of surgeries who think they are covered for legal expenses, and are under a misapprehension. They need to check the terms of their policy.’

Andrew D’Arcy, Wesleyan director of general insurance said the terms of the policy were very clear, but that disputes with PCTs were different to other forms of contractual dispute.

‘The policy is designed to protect the rights of the practice facing specific legal problems in areas such as employment disputes, property matters, contract disputes, criminal prosecutions, recovering debts, partnership disputes and tax investigations,’ he said.

‘The agreement that a practice has entered into with its PCT is very different to contracts it might have with other parties.

‘It is governed by specific legislation which clearly and specifically denies normal contractual rights to the practice and requires any dispute to be resolved through an internal NHS Dispute Resolution Service.’

Mark Briegal, Partner at Manchester law firm Ralli, and head of its specialist partnership law team, www.rallipartnershiplaw.co.uk, said “it is important for all businesses to check the terms of their insurances carefully.  It is possible to sue insurance companies if they fail to provide cover when they should and we at Ralli have a track record of doing this.

However, if it is clear that a specific area of cover is excluded it will be difficult.  A group of practices may wish to club together to fund a special insurance counsel’s opinion on the terms of this insurance policy.  If the policy was bought through a broker the broker may be liable for mis-selling

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