insurance

Dentists denied Covid-19 loss-of-earnings claim advised to check their insurance policy

The door has been opened for dental practices and other small businesses to make or resubmit an insurance claim for loss of income arising from Covid-19 restrictions last year. At an appeal hearing last week the Supreme Court ruled largely in favour of small businesses which had initially been denied a pay-out by their insurers.

Nathan Poole of specialist dental accountants Ross-Brooke Dental, welcomes the news. “We recommend dentists check their policies, and liaise with their insurance brokers if they think there may be grounds for a claim. Dentists may have been told that no claim was possible previously but this new ruling may open the door.”

The Supreme Court ruling comes after a test case brought by the Financial Conduct Authority (FCA) acting on behalf of policy holders who had made a claim and been denied a pay-out. The case was fast-tracked to the Supreme Court resulting in a detailed and complex ruling.

Poole said most commercial insurance policies prioritise property and equipment damage and business interruption cover associated with closure of business due to fire and flood. However, some also cover interruption from disease or public authority closures or restrictions. While a number of insurers accepted liability under such policies, others disputed liability, leading to a lack of clarity and the FCA’s test case.

He continued: “We have been working with clients to quantify and substantiate their losses which we are finding start from £50k, so substantial sums. Some dentists have already been contacted by their insurer to quantify their claim should this ruling go against them. Now the Supreme Court has ruled in favour of policyholders, we expect to see those claims settled.”

He said: “A number of our dentist clients have already had pay-outs. Obviously every policy has limitations and clauses specifying the insurers liability, but I believe there will be more dentists who find that the door which had previously been closed to them has been opened and a claim is now possible.”

His colleague Linda Giles said: “We don’t advise on insurance policies as we are not authorised to do so but we encourage our clients to use specialist brokers to get the best and most appropriate cover for a dental business. We also encourage clients to review their levels of cover regularly and make sure they understand what’s on offer, so they choose a policy to suit their needs.”

Towergate Health & Protection predicts a significant rise in businesses offering dentistry benefits

With dentists across the UK beginning to open their doors to patients, a significant backlog of people needing dental treatment as a result of the pandemic, and costs of treatment likely to increase – offering access to dental care is set to become one of the most popular health and wellbeing benefits, predicts Towergate Health & Protection.

Brett Hill, Distribution Director at Towergate Health & Protection, said: “With most dentists forced to shut due to Covid-19, only treating or referring urgent cases, businesses and employees alike will want to get back on track with dental care now that surgeries are gradually reopening. With access to NHS dentistry about to become more difficult than ever, and costs for private dentistry expected to rise, we are likely to see an increase in businesses investigating options available to support staff with their dental health, such as providing greater financial support for check-ups and treatment.”

Supporting increased cost

Dentists may well look to pass increased cost – due to additional spend required for Covid-19 infection control – on to patients. As a result, businesses will be looking at ways to help employees manage the additional financial burden by providing benefits that can support this outlay. Dentist surgeries are having to invest in PPE, to meet Public Health England requirements for operating safely, and won’t be able to see as many patients as before – to adhere to social distancing and cleaning regulations. Some associated costs will need to be transferred to the patient, and dental benefits – such as cash plans or those included within private medical insurance – can help employees with covering the expenditure.

Minimising related absence

Employers will also be keen for those staff suffering with non-urgent requirements to be treated as soon as possible, for their personal wellbeing, and to return to work more quickly and comfortably. As dentists work through the lockdown-induced backlog, demand for services may outstrip supply – so delays are to be expected. Waiting for slots to become available, the increased time required to physically attend appointments, and inability to work because of dental health issues can increase dentistry-related absence; but benefits can help with affordability if treatment is required – potentially preventing further delays from returning to work.

Hill added: “Employers will be very aware of the health concerns their staff may have faced during lockdown and will be eager to support them as restrictions are being lifted. With dental surgeries beginning to reopen across the UK, a key way for businesses to support staff will be by helping them to afford treatment and check-ups. By providing benefits, such as dental insurance or health care cash plans, businesses can support employees with getting their health back on track – in turn, potentially improving wellbeing and absence.”

BDA urges FCA to consider the plight of dentists in its legal process to assess the validity of business interruption insurance policies

The British Dental Association (BDA) urges the Financial Conduct Authority (FCA) to consider the plight of dentists in its legal process to assess the validity of business interruption insurance policies.

As limited face-to-face dental care resumes this week in England the BDA, which represents dental practices across the country, has made a formal request to the FCA to give specific consideration to the unique challenges facing the sector before the FCA takes forward a test case on insurers’ non-payment of Business Interruption claims.

The FCA had stated on 15 April that most policies with basic cover would not cover Covid-19 but is now seeking “legal clarity” on business interruption insurance in an attempt to provide greater clarity for businesses and insurers.

The BDA instructed law firm Brown Rudnick LLP to review the wide range of business interruption policies held by our members and provide tailored legal advice for the dental sector and has set out in detail to the FCA the issues faced by the profession, asking the FCA to adequately reflect these in its own legal challenge.

As stated in the letter to the FCA: “The BDA welcomes the opportunity to give representations in the Test Case given the number of dental professionals it represents and given the industry-specific impact Covid-19 and the associated public authority measures have had and will continue to affect the dental profession.”

The BDA is advising members to await the outcome of the FCA process before considering whether to pursue class action litigation, which appears premature at this stage and will not help to solve the cash crisis that members are facing now. 

BDA Chair Mick Armstrong said: “We have set out to get the best possible holistic advice on the dozens of policies serving the dental sector and will be sharing the lessons from that with our members. The FCA needs to appreciate the unique challenges faced by dental practices.

“Lengthy litigation should remain a last resort, and won’t keep practices afloat today. Our aim is to give our members the best possible understanding of their legal position and the FCA the best understanding of the dental sector.

“We want to see the FCA process lead to speedy resolution but for that to happen, the Authority needs to appreciate and consider the particular impact of the pandemic on dentistry. We hope our submission achieves that in unequivocal terms.”

The BDA and Brown Rudnick will be hosting a members-only webinar on 17 June for dentists to discuss the review conducted by Brown Rudnick, the BDA’s letter to the FCA and what next steps are likely to look like.

BDA surveys indicate as little as a third of practices reopened this week, most at less than a quarter of their former capacity, leading to on-running risks to the sustainability of the sector. 

 
Only 8% of respondent practices estimated they will be able to maintain their viability on the basis of lower patient numbers and sky-high costs. Costs for personal protective equipment (PPE) alone for treating a single patient have increased by up to 6,000%. 

Commenting on the re-opening of dental practices this week,  Armstrong added: “The skeleton service now operating remains hugely vulnerable, operating a fraction of its former capacity while facing sky-high costs. The country and policymakers will be faced with a national dental health crisis if dentists do not receive the urgent support that they need now including the speedy resolution of whether or not the insurance companies will payout.”

Mishcon Advances Group Claim for Dental Practices

Dental practices with business interruption (BI) insurance policies underwritten by QBE today are offered a viable collective route to litigation in circumstances where their Covid-19-related claims have been rejected by their insurer.

Leading law firm, Mishcon de Reya LLP, announces it has received agreement in principle from an experienced and well-capitalised litigation funder to fund a group claim against QBE for dental practices who have suffered business interruption losses relating to the Covid-19 pandemic. 

Mishcon’s litigation offering to dentists comes on the back of similar group claims on which it is currently advising: the Hiscox Action Group and hospitality sector-focused claims against Aviva and QBE). Mishcon is working with a specialist insurance Leading Counsel, Jeffrey Gruder QC of Essex Court Chambers; they believe that claims under the QBE dental practice policies are ripe for challenge.

Sonia Campbell, Partner and Head of the Insurance Disputes Practice at Mishcon de Reya LLP, commented: “The issue for dentists is similar in many ways to that experienced by the other businesses whom we also advise.  Dental practice owners responsibly insured themselves against the risk of financial losses, including from notifiable diseases and yet, just like those in other trades, soon learned that their claims have been rejected.  Practice owners provide an invaluable service to patients in their local communities.  We hope by supporting dental practices we can help them restore their vital businesses to full health.” 

To express interest in joining a dental group claim against QBE, dental practice owners with Business Interruption insurance policies insured by QBE (Office Insurance Policy) should email dentalclaims@mishcon.com by no later than 19 June 2020 to be included in the potential claim.

Dental Protection offers support to dentists deciding to re-open practices

Dental Protection has reassured all members working in England who choose to return to work that they will continue to be supported. While the situation with NHS practices reopening is clearer due to a general acceptance that the Chief Dental Officer (CDO)’s guidance will be followed, the position regarding private practice has been less clear and has left those dentists – many of whom are facing financial difficulties – concerned about when they can return to work and whether they would be protected if they choose to do so.

Dental Protection has said members operating in the private sector who decide to return to work can be reassured that the indemnity provided by Dental Protection will continue to meet their regulatory and legal obligations, as long as they are in active membership and paying the correct subscription for the work they will be undertaking.

It added that members will have access to support and advice if needed, and if a complaint or claim should arise from the decision to re-open, members can request assistance.

In an email to members, the organisation said that the decision to re-open rests with the individual practice owner and that while Dental Protection cannot make such decisions for dentists, it can advise members of what they should consider when making the decision, such as:

  • The GDC statement that ‘Practitioners providing NHS services will of course need to adhere to the directions given by  the CDO; other practitioners will want to take that into account in making decisions.’
  • The CQC’s stated position that it ‘cannot require providers of dental care services to close, unless we find clear evidence of a breach of our regulations that requires consideration of the use of our powers under the Health and Social Care Act 2008 and associated regulations. It has also said that ‘The decision to offer dental care services is one for the provider to take.’
  • The need to adhere closely to central Government guidance on social distancing and to the most recent dental guidance documents from various agencies including PHE and the prevailing CDO guidance.
  • If you operate in the private sector, you should review existing protocols and standard operating procedures (SOPs) and take these into account when developing your own protocols, individually or within groups, and ensure practice protocols/SOPs meet the standards set in the prevailing guidance. 
  • Undertaking a thorough clinical risk assessment of the operating environment and of the patient journey.

In the event of a complaint or claim regarding the decision to re-open or the care that was provided, Dental Protection also it would be important to be able to evidence the following:

  • Written SOPs consistent with the widely accepted evidence-base and at least as robust as those issued by the NHS
  • Evidence of understanding and adherence to the SOPs and protocols by all team members
  • Clinical records which, in additional to usual record keeping requirements, clearly show the process of care, the rationale of the clinical intervention(s), the PPE used together with details of the relevant guidance considered in clinical decision making.

Raj Rattan, Dental Director at Dental Protection said: “Our team at Dental Protection includes experienced clinicians, associates and practice owners, and we understand the myriad of challenges facing members during the current crisis, including the welfare of their staff, their patients and themselves. We also recognise the financial pressures they may be facing, which is why we have offered members the equivalent of two months’ subscription relief. As a profession, we may not know what the future looks like, but I can assure you that Dental Protection will be protecting members as the situation evolves.”

Further information is available at: https://www.dentalprotection.org/uk/articles/information-for-members-considering-re-opening-their-private-practice

Dentists instruct Brown Rudnick LLP to advise on business interruption cover

The British Dental Association (BDA) has today announced that it is taking urgent legal advice in respect of the vast majority of insurers not paying insurance claims of dentists for business interruption during the Covid-19 pandemic.

The Association has instructed international law firm Brown Rudnick LLP to examine insurance policies affecting dental practices. It is now working with grass roots BDA members who have organised on social media to gather relevant evidence on the full range of polices in the sector.

Legal advice will shape the guidance that the BDA will be offering a profession that has been blindsided by a lack of effective insurance response during a period that has seen routine care suspended and cash-flow for many practices fall to zero.

The BDA notes that the Financial Conduct Authority (FCA), having stated on 15 April that most policies with basic cover would not respond to Covid-19 losses, now seeks “legal clarity” on business interruption insurance in an attempt to provide certainty for businesses and insurers.

The BDA has acted following uncertainty over whether the FCA move will help or hinder practices given the breadth of policy wording covering the different sectors of the UK economy and the urgent cash crisis facing businesses. This has been made more acute in light of the indication that a court hearing will not take place until July.

Dentist leaders have also indicated they hope that instructing Brown Rudnick now will give them a better understanding of their legal position and allow them to consider representations to the FCA as part of the regulator’s recently announced course of action. Following the conclusion of that process, an understanding of the legal position will give the BDA a strong foundation upon which to engage with insurers and the FCA.

The government has remained unwilling to extend the Business Rates Retail Discount of 100% currently offered to leisure and hospitality sectors to dental practices, to ease potentially crippling losses in the sector. BDA polling has indicated over 70% of practices report they can only remain financially sustainable for the next three months.

British Dental Association Chair Mick Armstrong said: “Many dentists who took out policies to guard against the unexpected have been left with no support during this pandemic. The FCA has begun its own legal process to weigh up policies covering almost every business sector in Britain. However, it is clear this will now take months. We’re not prepared to be a passive observer, and wait on a ‘One Size Fits All’ court determination that could leave the practices that millions of patients depend on dangerously exposed. To that end, we have instructed an experienced international financial services law firm to review the insurance policies bought by dentists across the country from all providers. We need to know if there are realistic options to get practices the insurance payments that they desperately need, and that they thought they were signing up to.”