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Analysis: When lines become blurred

After the Hong Kong High court found a doctor and a lab technician guilty of manslaughter, Michael Griffiths, regional director of healthcare at specialist insurance brokers Howden, looks at the extent of insurance or indemnity available to doctors in Asia accused of criminal acts.

Dendritic Cell (DC) Therapy and Cytokine-Induced Killer Cell (CIK) Therapy are two distinct types of experimental treatment for cancer patients. They both work on the principle of using the body’s natural cancer fighting properties, and either introducing mutations that target particular types of cancer or simply increasing the number of cancer-fighting cells. Such treatments do not present as obvious candidates for crossover into beauty therapy, but this is what occurred in at least one Hong Kong clinic. Evidently a combined DC-CIK treatment was being marketed as an immune system stimulator that would prevent aging by removing dead or aging cells.

DC and CIK therapies are invasive and require a significant level of technical clinical skill. Blood is extracted from the patient and cultured with a mix of proteins to multiply both DC and CIK counts before being reinjected. The blood is cultured at the normal body temperature of 37 degrees Celsius, which obviously means a heightened risk of bacterial contamination. At the Hong Kong beauty clinic, there were evidently no safety protocols or bacterial checks in place. During 2012 four clients of the beauty clinic were hospitalised with severe septicaemia, resulting in one death and one patient who required a double-leg amputation. The Hong Kong High Court found the beauty clinic owner, a medical doctor, and his technician guilty of manslaughter and jailed them for 12 years and 10 years respectively.

Behind the facts of this disturbing case lies a question of insurance coverage. Hong Kong and Malaysia have laws that make it possible for doctors to be tried for manslaughter arising from medical treatment, although to date they have seldom been applied. In many other Asian countries negligence itself is a criminal rather than a civil wrong, and so deaths related to treatment are quite likely to result in criminal prosecutions.

What, then, can a doctor expect from his or her Medical Malpractice Insurance policy if they are the subject of a criminal prosecution?

Generally speaking, insurance policies exclude claims arising from criminal acts. This is usually held to be a matter of public policy – it is a problem if people are encouraged to break the law knowing that they can rely on insurance to protect them. But what if the doctor is innocent of the charges, and is not convicted of any offence? Some insurance policies will recognize the “innocent until proven guilty” status of the insured, and may include language along these lines:

This policy will cover a prosecution brought against the Insured in a court of criminal jurisdiction arising out of the Insured’s work as a Registered Medical Practitioner until such time the Insured admits to or is judicially determined to have committed a criminal act.

Effectively, a policy with such language will cover the legal costs incurred in defending a criminal charge, up to the point where guilt is established. In theory, once a doctor is found guilt the insurer can seek recovery of the costs they have paid from the doctor, but in practice this is difficult to achieve (especially of the doctor is imprisoned).

It is important to bear in mind that not all Medical Malpractice Insurance policies are created equal. While cover for criminal defence costs is sometimes available, it is far from being a standard coverage. Doctors should check their own policies carefully to ensure they have the required protection. For those doctors who purchase indemnity from a discretionary mutual, then cover for criminal defence costs (like any other claim) is subject entirely to the discretion of the mutual. However, in most cases a discretionary mutual will probably be willing to exercise its discretion in favour of the doctor and provide a similar cover to that offered by Medical Malpractice Insurance policies.

It is not known whether the doctor and technician involved in the DC-CIK incident in Hong Kong carried insurance or indemnity. In their case, even if protection for criminal defence costs was available, it may still have been difficult for them to obtain cover. Medical Malpractice Insurance policies often stipulate that cover only applies in relation to bona fide medical treatments. Should there be no clinical evidence that DC-CIK therapy provides the promised benefit, the treatments may fail this test.

Medical Malpractice Insurance policies were written with civil liability arising from traditional medical practice in mind. In cases where criminal conduct is alleged, or where the line between medical and cosmetic treatments becomes blurred, the traditional policy may prove inadequate without specific tailoring. Insurers sometimes boast proudly that they have been operating for over a hundred years; perhaps a prouder boast would be to show that they have kept their policies up to date with current practice.

Posted on: 04/01/2018 UTC+08:00


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