RURAL VMO/HMO CONTRACT OF
LIABILITY COVERAGE INCLUDING
PRIVATE INPATIENT INDEMNITY COVER)
THIS
CONTRACT is made on the day of 2006,
AND
Dr
.. ("the VMO"**)/"HMO"**).
WHEREAS:
A. The VMO**/HMO** has been appointed as a visiting medical officer under a written service contract with the PHO, subject to the terms and conditions of the service contract. A copy of the written service contract (the "service contract") is annexed
as Attachment A to this contract.
B. The PHO agrees to indemnify the VMO**/HMO** (and where the service contract is with the VMO's**/HMO's'`'`
practice company, that practice company)
for certain health care claims in accordance with the terms of this contract.
C. The NSW Department of
Health has prepared an Explanation Document
to assist VMOs, HMOs and public health organisations
to understand the standard contract of liability coverage. A copy
of the document current at the date of this contract is annexed as Attachment
B. This document may be
subject to variation from time to time by the Department as issues concerning the TMF indemnity arrangements
which require further explanation or
clarification arise.
NOW
IT IS HEREBY AGREED AS FOLLOWS:
1. Term
of Contract
**For Visiting Medical
Officers obtaining TMF cover part way through their current term of appointment
1.1 Unless
sooner terminated in accordance with this contract, the term of this contract
is from the date of this contract to the date of expiration or termination
of the service contract (including any extension of the service contract term
by written agreement of the parties). **
**For Visiting Medical
Officers obtaining TMF cover at the commencement of new appointment or
re-appointment:
1.1 Unless
sooner terminated in accordance with this contract, the term of this contract
is concurrent with the term of the service contract (including any extension
of the service contract term by written agreement of the parties). **
1.2 Where the VMO**/HMO** is
re-appointed in writing for a consecutive term of not more than 3 months, the
term of
this
contract is extended
for the term of that further appointment, unless sooner
terminated in accordance with this contract.
** Delete whichever is inapplicable
2
2. Liability
Coverage
2.1 Subject to clauses 2.3 and 4, the PHO will
indemnify the VMO**/HMO** (and
if the service contract is
with the VMOs**/HMO's** practice company, the
practice company) for civil
liability arising from any health care claim in
respect of occurrences
during the coverage period*** relating to the provision,
by the VMO**/HMO**, of:
2.1.1
health care, under the service contract, to public patients in public
hospitals, or through health services, under the control of the PHO, and includes health care which the PHO
directs the VMO to provide to public
patients for and on behalf of another public health organisation; and
2.1.2
health care to private inpatients in public hospitals under the control
of the PHO.
2.2 The references to "health care to public patients in public
hospitals or through health services" in
clause 2.1.1 and to "health care to private inpatients in public hospitals" in clause 2.1.2 includes
the provision of medical advice by the VMO**/HMO** to a person as part of
obtaining the person's consent to undergo or receive a medical procedure or
treatment, notwithstanding that the
provision of the advice in
obtaining consent to the procedure or treatment did not occur in a public
hospital or other health service under the PHO s control, provided that:
2.2.1 the VMO**/HMO** subsequently provides that medical procedure or
treatment to the person as an inpatient in a public hospital or other health service: and
2.2.2 the VMO**/HMO** substantially complies with the NSW Department of
Health's policy on consent
to medical treatment as specified from time
to time by circular issued
to public health organisations.
2.3 The indemnity under clause 2.1 does not apply
to the following:
2.3.1 any health care claim arising out of conduct
on the part of the VMO**/HMO**
that constitutes a criminal offence or any other serious and willful misconduct;
2.3.2 any claim arising from the manufacture of any
products or the construction, alteration, repackaging; repair, servicing,
treating of any products sold, supplied or distributed by the VMO**/HMO**,
other than where the product is supplied to the VMO*"/HMO** by the PHO; or
2.3.3
any claim arising out of the failure of any product to fulfill the
purpose for which it was designed, specified, warranted or guaranteed to
perform, other than where the product is supplied to the VMO**/HMO** by the
PHO.
*** "Coverage
period" is defined in clause 11.
** Delete whichever is
inapplicable
3
3. Visiting Medical Officer's
Responsibilities
Prompt notification of
certain incidents
3.1 The VMO**/HMO** is required to promptly
report in writing to the PHO any incident which could reasonably be expected to trigger the indemnity
under this contract in the
future, as soon as the VMO**/HMO** becomes aware of such an incident. The report must be in the form of the NSW Treasury Managed Fund (TMF) Incident Report as varied from
time to time. The TMF
Incident
Report Form current as at the date of this contract is Attachment C to this
contract.
Quality assurance, quality improvement and
risk management
3.2 The VMO**/HMO** is required to cooperate with
and participate in any clinical quality assurance, quality improvement or risk management process,
project or activities as
required by the PHO.
In particular, the
VMO**/HMO** is required to actively participate in the PHO's programs to
implement the initiatives set out in the NSW Department of Health document
titled "The Clinician's Toolkit for Improving Patient Care".
This involves activities to
minimise and deal with human error and improve patient safety. It includes the VMO**/HMO**
undertaking the following activities:
3.2.1 facilitated incident
monitoring
3.2.2 participation in sentinel event management.
3.2.3 the use of clinical indicators for the purpose of improving clinical
practice.
Health Care Claims History
3.3 The VMO**/HMO** must, within ten working days
of receiving a written request
from the PHO, provide to the PHO his or her record of health care claims history for the past 6 year period.
Private inpatient
classification and billing
3.4 The VMO**/HMO** must ensure that:
3.4.1
in respect of health care provided by the VMO**/HMO**` to private
inpatients, who are compensable patients where a fee/s for health care of the
kind provided to such patients by the VMO**/HMO** is specified under motor
accidents, workers compensation or other statutory scheme, such patients, or
the relevant insurers on the patients' behalf, are not charged more than the
specified fee/s for that health care.
3.4.2 in respect of health care provided by the VMO**/HMO** to private inpatients who are entitled veterans:
** Delete whichever
is inapplicable
4
(a) where a fee/s for health care of the kind
provided to such patients by the VMO**/HMO** are recoupable from the
Commonwealth Department of Veterans Affairs (however called), those patients are not charged more than the recoupable feels for that health care; or
(b) in any other case, such
patients are not charged more than 100% of the applicable Medicare Benefits Schedule feels for that health care.
4. Reporting, management and
conduct of claims
4.1 The VMO**/HMO** must report in writing to the
PHO any claim against the VMO**/HMO** (or his
or her practice company) for which the practitioner seeks indemnity under clause 2 as soon as practicable.
4.2 The management and conduct of a health care claim indemnified under this
contract passes entirely to the PHO and the NSW Treasury Managed Fund. The PHO and the NSW Treasury Managed Fund are
responsible for the incurring
and payment of legal and other costs in managing and conducting the claim. The PHO and the NSW Treasury
Managed Fund are entitled at any
time to conduct, in the
name of the VMO**/HMO** (or, where applicable, his or her practice company),
the investigation, defence or settlement of any such claim.
4.3 The
indemnity provided under clause 2 is conditional upon the rights of subrogation
and the co-operation of the VMO**/HMO** (and, where applicable, his or her
practice company) in the management and conduct of the claim as set out in Schedule 1 to this contract.
4.4 Where a health care claim against the VMO**/HMO** or his or her practice
company is not the subject of indemnity under
this contract but the PHO holds information
in respect of the particular occurrence giving rise to the claim the PHO will, upon request, provide such information to
the VMO**/HMO**, or the medical indemnity provider of the VMO or his or her
practice company,
provided it is lawful and reasonable to do so.
5. Process prior to termination
5.1 Prior to being given written notice of
termination under this contract, the Fund
Manager or PHO, as the case
may be, must:
5.1.1
request in writing that the VMO**/HMO** show cause why termination
should not occur. This "show cause" letter must outline the reasons
for the proposed termination, and provide the VMO**/HMO** with a period of 30 days from the date of receipt of the
letter within which to respond; and
5.1.2
advise
the VMO**/HMO** in writing of the outcome of its consideration of the response to the "show cause' letter.
6. Termination
** Delete whichever is inapplicable
5
6.1 This contract may be terminated by written
notice given to the VMO**/HMO** by the
Fund Manager. Subject to clause 5 the Fund Manger may give such notice where:
6.1.1 the
VMO**/HMO** has an incident and/or health care claims experience which the Fund
Manger considers warrants termination of the contract; or
6.1.2 the VMO**/HMO** breaches clause 3.1.
6.2 Subject to clause 5 the PHO may terminate this contract by the giving of
written notice in the event that the
VMO**/HMO** repeatedly fails to comply with clauses 3.2, or 3.4, or
fails to comply with a request under clause 3.3.
6.3 The VMO**/HMO** may at any time terminate this
contract by written notice given
to the PHO.
6.4 Termination does not take effect unless the
notice of termination contains advice to the VMO**/HMO** as to the process for
requesting a review of the decision
to terminate.
6.5 Where the VMO**/HMO** requests a review under
clause 7, termination does
not take effect unless the
outcome of a review (which complies with clause 7)
has determined that termination of the contract
should occur.
6.6 Termination does not take effect until
whichever is the later of the following:
6.6.1 the
expiration of three months following the giving of notice under this clause; or
6.6.2 where the VMO**/HMO** requests a review in accordance with clause 7, the
expiration of 30 days following receipt by the VMO**/HMO*" of written
advice of the outcome of a review undertaken in accordance with clause 7.
7. Review
7.1 The VMO**/HMO** may make a request in writing
to the Director-General for review
of a decision:
7.1.1 to give notice of termination
of this contract under clause 6; or
7.1.2 that indemnity is not to be provided, or will cease to be provided, in accordance with the terms and conditions of this
contract,
within 30 days of
receipt of notice of termination or written advice of a
decision that indemnity is
not, or is no longer, to be provided in accordance
with the terms of the
contract in respect of a claim.
7.2 A review panel convened by the
Director-General will consider the request for review.
7.3 A review panel is to consist of the following persons:
** Delete whichever is
inapplicable
6
7.3.
1 the person for the time being holding the position of Chief Health
Officer of the NSW Department of Health (however called);
7.3.2 the person for the time being holding the position
of Chief Financial Officer
of the NSW Department of Health (however called);
7.3.3 the person
holding the position of General Counsel with the NSW Department of
Health (however called); and
7.3.4 a nominee of the Australian Medical Association (NSW), or if the Visiting Medical Officer is remunerated under the Rural Doctors Settlement Package arrangements, a nominee of the
Rural Doctors' Association (NSW).
7.4
If,
following review, the review panel determines that the termination decision should not proceed or that indemnity is. or will continue, to be
provided in accordance with the terms and
conditions of this contract in respect of the relevant claim, the
Director-General will direct the Fund Manager or the PHO, as the case may be,
to withdraw the notice of termination or to provide or
continue to provide
indemnity for a particular claim and will advise the VMO**/HMO** of the outcome
of the review. Where the Director-General has directed that a notice of
termination be withdrawn. a further notice of termination may not be issued
under this contract for at least three months following the date of withdrawal of the notice.
7.5 If, following review, the review panel determines that termination of
the contract should occur or indemnity in respect of a claim is not, or is no
longer, available in accordance with the terms and conditions of this contract,
the Director-General will
advise the VMO**/HMO** of the outcome of the review.
8. Continuing Rights
The rights and obligations
conferred by clause 2, clause 4 and, insofar as clause 7 confers an entitlement
to review of a decision not to provide or to cease to provide an indemnity.
clause 7 of this contract survive the expiration or termination of this contract.
9. Notices
The addresses of the
parties for the purposes of giving any notice shall be as may from time to time be specified in writing
between the parties.
10. Applicable Law
This contract
will be governed by, and construed in accordance with, the law
for the time being in force
in New South Wales, and the parties submit to the
jurisdiction of the courts
of that State.
11. Definitions
coverage period means the term of this contract.
Compensable patient means a patient:
who is receiving public hospital services for an
injury, illness or disease: and
** Delete whichever is inapplicable
7
who has received, or has established a right to receive, payment by way
of
compensation or damages
(including payment in settlement of a claim for
compensation or damages)
under a law that is or was in force in a State or
Territory (other than
Veterans; Affairs legislation) in respect of the injury
illness or disease for
which he or she is receiving health care;
Director-General means the person for the time being holding
the office of DirectorGeneral
of the NSW Department of Health (however called);
eligible person means eligible person as defined by section 3
of the Commonwealth Health
Insurance Act 1973:
entitled
veteran means an entitled
veteran as defined by the Australian Health Care Agreement applying from time to time;
Fund
Manager is the body engaged
from time to time by the NSW Treasury to manage the NSW Treasury Managed Fund;
health care means
any care, treatment advice, service or goods provided in respect of the physical or mental health of a person;
health care claim means a claim for damages or other
compensation, whether by
verbal or written demand or the commencement of
legal proceedings, in respect of
an injury or death caused
wholly or partly by the fault or alleged fault of the
VMO**/HMO** in providing or failing to provide
health care;
ineligible patient means a patient who is an ineligible person; ineligible person means a person
who is not an eligible person;
NSW Treasury Managed
Fund is the self-insurance
and risk management scheme established
by the NSW Government to cover certain liabilities of the
State and its agencies. A reference in this contract to the NSW Treasury
Managed Fund is taken to include any
officer or employee of the NSW Government, the Fund Manager or any employee or
agent of the Fund Manager involved in the investigation, management or conduct
of health care claims indemnified under this contract;
practice company means a practice company as defined by the
Health Services Act 1997:
private inpatient means a patient who is admitted to a public hospital
under the control of the PHO, and who is not a public patient. Unless the
contrary intention is expressed in this contract, "private inpatient"
includes a compensable patient, entitled veteran and an ineligible patient. It
does not include, for the purposes of this contract only, an ineligible person who the
VMO**/HMO** is required, by the PHO, to treat as a public patient in a public
hospital or public health service under the VMO**/HMO** service contract:
public health organisation means a public health organisation as defined
by the Health
Services Act 1997:
public hospital means
a public hospital as defined by the Health Services Act 1997;
public patient means an eligible
person who receives or elects to receive health care at a public hospital or
public health service free of charge. It also means, for the
** Delete whichever is
inapplicable
8
purposes of this contract only, an ineligible patient who the VMO**/HMO** is required, by the PHO, to treat as a public patient in a public hospital
or public health service under the service
contract:
record of health care
claims history means
a record of the number of health care claims. or incidents that may give rise to health care claims, notified
to the VMO**/HMO** professional indemnity provider, including date of
notification of each health care claim, date and brief description of each
relevant incident and the compensation
range within which the health care claim fell or is estimated to fall, as
follows:
(i) <$50.000
(ii) $50,000 -
<$100,000
(iii) $100,000 - <$250,000
(iv) $250,000 - <$500,000
(v) $500,000 - <$1 million
(vi) $1
million +.
SIGNED for and on behalf of )
the Public Health
Organisation )
in the presence of : )
.........................................................
Witness
SIGNED
by the Visiting Medical )
Officer/Honorary Medical
Officer** )
in the presence of: )
..
Visiting
Medical Officer/
Honorary
Medical Officer
..
Witness
** Delete whichever
is inapplicable
9
SCHEDULE 1
Conditions related to the
management and conduct of claims
1.1 It is a condition precedent to the provision of
indemnity under clause 2 of this contract in respect of a claim that the VMO**/HMO**:
(i) give the PHO, the NSW Treasury Managed Fund
and any legal representatives
appointed by the NSW Treasury Managed Fund all information and assistance in relation to the claim
as they may reasonably require to
determine liability, investigate, defend or settle the claim;
(ii) release to the PHO and the NSW Treasury
Managed Fund all
documents that they may require
to determine the existence or extent
of the PHO's obligations and assertion of its
rights of contribution as
against any and all other persons, entities or
organisations;
waive
in favour of the PHO and the NSW Treasury Managed Fund any
client legal privilege that
may arise between the VMO**/HMO** and
the legal representatives
appointed by the NSW Treasury Managed
Fund or b