Hospices and other health and social care providers delivering palliative and end-of-life care could be exposed to medical malpractice claims. We clarify the risks and evaluate the role of insurance.

Navigating claims of negligence or mistakes made during palliative or end of life (EOL) care delivered by hospices or other health and social care providers is not often straightforward. As this type of care is meant for terminally ill individuals and those facing the end of their lives, determining causation and other aspects of a medical malpractice case are more problematic than in other scenarios. Also, where patients are encouraged to engage with palliative care services as soon as possible following their diagnosis, they're using palliative care for longer periods of time in advance of requiring end-of-life care, prolonging the time their engaged with a hospice or other care provider.

Understanding how to manage risks around delivering palliative care can help you avoid potential negligence claims. Given the potential expenses involved, it's also worth evaluating the role of medical malpractice insurance in protecting your hospice or health and social care provider against claims relating to palliative and end-of-life care.

In this insight, we'll examine the risk and insurance landscape, specifically:

Definitions of palliative and end-of-life-care

The main difference between palliative care and end-of-life care is that the latter is for those diagnosed with a terminal illness with six months or fewer to live, while palliative care is for people at any stage of serious illness, even as early as the day of diagnosis, and therefore may still be pursuing curative treatment. For the purpose of this insight, when we refer to 'palliative care', we are also including end-of-life care.

Definitions relating to palliative care negligence

To clarify the risk landscape at stake further, it's worth starting by understanding some key negligence-related terms:

Wrongful death – Palliative care is treatment administered to relieve pains associated with terminal illness as a means to improve a patient's quality of life towards the end of it. While it may seem counterintuitive that a terminally ill patient could suffer a 'wrongful death' (since they are already expected to pass away soon), as with any other healthcare scenario, where medical malpractice causes a patient's death before they would have died unless the negligence occurred, you could still be held responsible via a wrongful death claim.

Duty of care – Most hospice services, or any other palliative care provider, must administer some form of medical treatment as part of patients' care; caregivers that fail to uphold their duty of care can cause them to sustain injuries. Discharging of your duty of care can include administering medications, further diagnosis, physical therapy, and other measures. If your organisation administers any of the medical services with a substandard or incompetent level of care, it will be guilty of medical malpractice.

Abuse/safeguarding – Hospice or other palliative care providers often take care of older patients or those with reduced mental or physical capacity that can leave them vulnerable to abuse. Abuse is not only neglect, but can also include physical, mental, sexual, or financial abuse. While you might normally purchase abuse cover as an extension to a public liability policy, insurers take different approaches to the way they provide cover, and some will not provide abuse cover at all.

Palliative care complaints leading to medical malpractice claims

A 2015 Parliamentary and Health Service ombudsman report provides many examples of end-of-life patients suffering harm and lists common complaints from end-of-life care, all of which could result in a medical malpractice claim. These complaints include instances of:

  • Caregivers not recognising that people are dying and not responding to their needs
  • Poor symptom control
  • Poor communication
  • Inadequate out-of-hours services
  • Poor care planning
  • Delays in diagnosis and referrals for treatment.

Understanding medical malpractice definitions in the context of palliative care

'Medical malpractice' is a wide term and does not necessarily relate solely to pure treatment-type failures, such as errors during surgery, medicine administration errors, inappropriate medical treatment and the like. From an insurance perspective, 'medical malpractice' means whatever the relevant insurer deems it to be via its policy definitions. Broadly speaking, medical malpractice covers any situation where a service user is injured while receiving some form of direct care. That said, this still leaves uncertainty as to exactly what constitutes a medical malpractice claim.

In the context of palliative care, let's think of a hypothetical service user to understand the risks.

They are receiving palliative care but are still fully mobile and able to walk without assistance. If they fall in a corridor (perhaps by tripping over a mat or some other obstruction on the floor) and fracture a hip, the claim would most likely be a public liability claim. However, if there is a suggestion a lack of appropriate assessment linked to the preparation of their care plan in part led to the fall – such as the service user's ability to self-mobilise was deteriorating over the days/weeks prior to the accident, which meant you should have considered providing some form of additional assistance, for example a walking frame or help from a carer – this could turn the claim into medical malpractice.

In this scenario, if you did not have medical malpractice cover in place, you would not receive any assistance in dealing with the claim and would have to source and pay for your own lawyers, in addition to paying any required compensation, out of you own funds.

Medical malpractice expenses in the context of palliative care

Legal advice is costly. The U.K. government's stated guidelines around hourly charging rates currently permitted in U.K. courts ranges from trainee solicitors at £126 per hour up to £512 per hour for qualified solicitors, depending on location.

It's also worth noting how claims involving elderly or infirm service users, even those receiving palliative care, can be incredibly expensive in terms of damages. The high level of damages around medical malpractice claims relating to palliative care is driven by:

  • The impact of the injury can be said to have a far higher detrimental influence on a service user's quality of life and general amenity, added to the fact courts have guidelines for awards for certain specifies injuries. For example, using our previous scenario of a fall in a corridor, the range of damages for hip injuries can be up to £130,930, depending on the specific types of ongoing disability
  • Special damages being awarded, which can, and often do, include large sums of money sought to cover the 'additional care' family members and friends provide the injured party. Friends and family can claim these costs at private care rates
  • NHS/ambulance charges – The government can reclaim the cost of looking after someone who has been injured. Any trip in an ambulance is likely to cost £243; any form of treatment administered where there is no formal admission to hospital costs £806 per visit; in-patient care costs £991 per day
  • Third party costs – Medical malpractice claims currently do not fall under the predictive/ prescriptive costs regimes, meaning defendants also have to pay the costs of the claimant's lawyers on the same hourly rate basis detailed above.

Next steps on managing risks around palliative and end-of-life care

The costs involved – in addition to the core driver of preventing patient harm, highlight the importance of fully understanding the risk to which you, as a palliative or end-of-life care provider, are exposed and the extent to which your current risk management controls combined with your insurance coverage protects you.

In terms of risk controls, it's worth evaluating the extent to which your current procedures – and how you are capturing risk assessments related to care plans and the like – are adequate in terms of harm prevention and claims defensibility. Where you decide not to buy medical malpractice cover, seek assurances you understand the residual risk you're retaining and how you would fund your legal costs around a claim and any subsequent damages. You may also wish to consider the impact of potential reputational damage on any charitable revenue streams.

Given the potential for a financial claim against you, which could be significant and an unfunded call on your finite resources, while medical malpractice premiums can represent a significant expense, you may still want to consider whether medical malpractice cover would provide protection you need against both legal fees and any compensation awarded against you.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.