Health and Assistance
In a care centre, the clinical decision of an afternoon is reviewed years later, and the programme must still be in place that day. The limit per victim, the annual aggregate from which each file is deducted, and the dates written in the contract are read together, because on the day of the claim they act simultaneously.
Medical liability and custody of patient records
Between the care act and the claim, several insurers may be involved.
Healthcare liability is contracted on a claims-made basis, so the policy in force on the day the claim arrives for a previous care act responds. The second paragraph of Article 73 of the Insurance Contract Law allows this modality with two alternative floors: either the policy covers events that occurred at least during the year prior to its entry into force, or it grants at least one year to notify claims after its expiration. Either modality is a limiting clause and, as such, must be specially highlighted and accepted in writing in accordance with Article 3. Below these floors, it ceases to be admissible, so the first check when comparing two offers is which of the two modalities each offers and how comfortably they exceed the legal minimum.
Claims-made basis, retroactivity and discovery period
The policy addresses the claim made during its validity as long as the act is after the agreed retroactive date. When changing insurer, closing a unit, or integrating a professional society, this date and the notification period are checked against both offers and are documented with the flexibility each situation requires.
The limit per victim and the annual aggregate
Each file is measured against the sub-limit per victim, while the general limit is consumed with those of the financial year. The limit reinstatement clause is reviewed at renewal, because it is not the same for it to operate automatically, be limited to a number of reinstatements, or require an additional premium.
Practitioners not on staff
The centre is liable for the care provided on its premises even when it is provided by an external professional or an intermediary company. The definition of insured and the waiver of subrogation between both contracts determine who is covered by the policy on the day of the claim.
The medical record and its custody
The medical record gathers special category data and is preserved, in accordance with Article 17 of Law 41/2002, for a minimum of five years from the discharge of each healthcare process, a period that several autonomous communities extend in their own regulations. A breach therefore affects patients who ceased to be so years ago, and the notification is followed by a claim for the use of that information, which travels a different route from healthcare liability and places two insurers in the same file. Agreeing in writing which one acts first is what organises those initial hours.
The covers that support a company in this sector
Each one is designed based on the company's real exposure. None are contracted the same in two companies in the same sector.
Lo que nos preguntan en health and assistance
We are going to change insurer. What happens with previous healthcare acts?
They remain covered only if the new policy maintains a retroactive date equal to or earlier than the one you already had. Healthcare liability is contracted on a claims-made basis under the second paragraph of Article 73 of the Insurance Contract Law, so the policy in force when the claim arrives responds. The useful comparison measures how much leeway each offer provides over the legal minimum.
How long after a healthcare act can a claim reach us?
The period depends on the nature of the claim: one year from when the injured party becomes aware of the damage in the non-contractual liability of Article 1968 of the Civil Code, and five years in the contractual liability of Article 1964. The direct action of Article 76 of the Insurance Contract Law also allows the patient to claim against your insurer, and this action prescribes along with the liability and not with the validity of the contract. The calculation starts when the sequelae stabilise and their extent is known, a moment that in healthcare arrives years after the act and that in a developing patient is delayed even further, because there are sequelae that only manifest with growth. The policy that responds is the one in force that day.
We have practitioners who invoice from their own company. Does the centre's policy cover them?
Only if the definition of insured expressly includes them and the policy waives subrogation against them. When the practitioner also maintains their own contract, we are not dealing with the concurrence of Article 32 of the Insurance Contract Law, which presupposes two policies stipulated by the same policyholder: here two contracts coexist with different policyholders, and the order of intervention is set by the other insurance clause of each policy along with the distribution of liability declared by the judgement. Communicating it to both insurers and agreeing in writing which one acts first is what organises the file the day it arrives.
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