Should Doctors' heirs renew their indemnity insurance after their death?
All doctors today take indemnity insurance, a product, which even the insurance companies poorly understand. Most doctors who have tried shifting their policies from the profit-making companies have been threatened by them that even cases which have happened during the time they were insured with them would no longer be serviced by them if they shift their policies elsewhere. The basis of such threat is that the policies issued to doctors are "claim" based policies and not "event" based policies. What this means in simple words is that if you were insured by X in 2016 and by Y in 2017 a surgery done in 2016 gone bad but claim filed in 2017 then it will be Y who will be responsible to provide services if you have been wise enough to insist on a retroactive date being mentioned in the policy document. If this was an event based policy, no matter when the claim was made it would be X who would be responsible to indemnify the insured.
The retroactive date is the date since when a doctor is continuously insured with any insurer prior to the current one. This means that the current insurer will service cases arising from events which happened earlier when the policy was given by a different insurer. This retroactive date creates confusion and is reason for many disputes between doctors and the indemnity insurers. One of the fallout of this confusion is the theoretical possibility of a claim being filed against a doctor or his establishment after his death when he is obviously no longer taking any insurance from any company. CPA 1986 amendment of 2002 specifically mentioned that in case of death of doctor (opposite party) the case would continue against the legal heirs and estate of doctor. The CPA 2019 has not mentioned anything in this regard and covers only the aspect of death of complainant (CP Act 1986 (2002 Amendment) Section 13(7) CPA 2019, Section 38(12). Both the CPA, 1986 & 2019 allow case to be filed up to 2 years after cause of action and if the discovery rule as defined by honorable SC remains applicable under CPA 2019 then the case may be filed up 2 years after the time when the complainant discovered that the doctor was negligent which in effect could mean even decades later. Since the doctor would be dead and gone when a claim is made who will indemnify the estate of the doctor.
NCDRC in the case of JAIN HOSPITAL & ANR. Versus 1. ANAR KUNWAR, 2. Dr. Urmil Aggarwal Jain Hospital, 3. Dr. Tarun Badwal decided in Jul 2015 on such a matter. Dr. Tarun Bedwal had died after the order of the District Forum and during the pendency of the appeals before the State Commission. The State Commission dismissed the complaint against All 3 opposite parties. Appeal filed in NCDRC that SCDRC was not justified in dismissing the complaint against Dr. Tarun Bedwal, without returning a finding that there was no negligence or deficiency on his part in treating the complainant. Since Dr. Tarun had expired no one had represented him in the appeal. Order of district forum awarding 2,50,000 compensation to be paid by Dr. Tarun Bedwal restored against his Estate. Also as per Order XXII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908); The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Even though the death of the doctor has not been covered in CPA 2019, a civil suit filed would probably follow the Code of civil procedure in this matter.
The issue whether a dead person can be sued for compensation obviously stares you in the face. But India is a diverse country where the establishment may continue to be operated by surviving spouse who may not be of same speciality. So far the judiciary has penalized the insurance company by making the insurer who had covered the insured at the time the cause of the action arose but the issue of retroactive date, event-based, and claim based policy will someday need to be adjudicated by the honorable SC especially when the stakes are high. Only then will my apprehension be laid to rest that I may be sued even after my death and my insurer may refuse to indemnify. I understand that this is a theoretical risk but unless the terms of insurance are corrected, this may well, become a reality.
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