Communicable diseases and healthcare: How to protect against infection liability claims

The impact of the COVID-19 pandemic on health and social care settings is well known, but the numbers still make for grim reading and highlight the infection risk inherent in health and social care settings.

Overall, it’s thought that 56% of care homes were affected, with 20% of residents and around 7% of staff infected, and care home deaths accounted for 40% of the total.¹  Meanwhile, transmission rates in hospitals were very high too, peaking in December 2021 when around a quarter of patients caught the virus after being admitted for another illness.²

Clearly, this was a painful and traumatic time for health and social care organisations, staff and residents. However, the COVID-19 pandemic brought another, less widely discussed consequence for these organisations, which could leave them exposed if they are held liable for communicable disease infections or outbreaks in future.

Restricted insurance cover for communicable diseases

That is, in response to the COVID-19 outbreak, and seeking to reduce their own exposures, many insurers moved to restrict insurance cover relating to communicable diseases – either, excluding COVID-19 or going further by removing all cover for communicable diseases. 

As a result, health and care organisations affected by communicable disease infections may find themselves without cover for legal fees and compensation in the event they are held liable for infections following legal action.

For instance:

• While public liability insurance is designed to cover the accidental death of or accidental personal injury to any person and may extend to diseases, many policies now exclude some named diseases or communicable diseases as well as COVID-19.
• Employers liability is compulsory for all employers and covers legal liability for bodily injury or disease sustained by any employee which arises out of and in the course of their employment. There remains some uncertainty as to whether employers liability would extend to communicable disease claims but, even in cases where it does, they would clearly offer no protection against claims from patients or residents.
• As well as material damage to premises, business interruption insurance also responds to “named diseases” – a clearly defined list of diseases that are covered and if the disease isn’t listed, it will not be covered. At the time of the COVID-19 outbreak, as a new virus, it was not listed in policies as a named disease, while policies taken out more recently may now exclude some or all cover for named diseases.

What is a communicable disease?

In medical terms, a communicable disease can be defined in a variety of ways. For instance, these diseases can be defined according to clinical syndrome, mode of transmission, vaccine preventable, or by major organism classification – viral, bacterial, fungal, and parasitic diseases.

While insurance policy wordings vary, a communicable diseases policy might use a definition such as; ‘Any disease which can be transmitted by means of any substance or agent from any organism to another organism’. It may include clauses defining the disease cause – ‘virus, bacterium, parasite or other organism or any variation thereof, whether deemed living or not’ – as well as covering method of transmission, and its potential impact on human health and welfare.

Named disease policy clauses are more specific, for example, listing conditions such as food poisoning as well as specified human infectious or contagious diseases – from acute poliomyelitis to tuberculosis.

Communicable disease liability risk in health and social care

The lack of cover for communicable diseases in liability policies could leave health and social care organisations exposed to costly legal action in the event an individual takes legal action alleging negligence, errors, or omissions following infection.

Without effective cover, organisations would be forced to fund legal defence costs and any compensation awarded against them – potentially damaging their financial health and ultimately, care provision.

Brand new communicable disease cover for healthcare

The good news for health and social care organisations is that a standalone communicable disease insurance policy is now available. It offers broad cover for outbreaks of infectious disease caused or made worse by negligence, errors, or omissions, and can include cover for COVID-19.

Underwritten by Medical and Commercial International, this cover is now available to Marsh Commercial clients and offers broad protection – including for third parties like residents, patients and the public, as well as employees – covering legal costs and compensation.

Find out more

For more information about communicable disease risk in healthcare, or to find out more about the infectious disease liability insurance available from Marsh Commercial, get in touch.