A neurosurgeon’s fight with the Medical Defence Union over denied indemnity support has thrown a spotlight on the tough realities of discretionary insurance coverage in the UK.
Christos Tolias, a consultant neurosurgeon, took the Medical Defence Union (MDU) to court after the organisation twice refused his requests for discretionary assistance in defending a clinical negligence claim. The dispute stemmed from surgery Tolias performed on a patient, referred to as YL, in June 2013 - a time when he was still a member of the MDU.
Tolias’s membership with the MDU, which had begun in 1996, ended on 1 October 2013. He then arranged new indemnity insurance through a broker, PMP, for the following two years. These policies included a retroactive date that covered the 2013 surgery, a detail that would later become central to the dispute.
In January 2014, Tolias received a letter from Stewarts Law, acting for YL, along with a form authorising the release of medical records. This was the first clear sign that a professional negligence claim was being considered. By March 2014, YL’s solicitors had sent Tolias a notice of funding, and in June 2015, a formal letter before action landed - confirming the intent to pursue a claim over the 2013 operation.
When Tolias turned to his new insurers for help, they declined cover. Their reasons were threefold: he had failed to notify them of YL’s potential claim before the new policies began; the policies specifically excluded prior circumstances; and the claim was, in their view, subject to indemnity or assistance from another defence organisation - namely, the MDU.
With his new insurer out of the picture, Tolias returned to the MDU and requested discretionary assistance. The MDU, following its established process, referred the matter to its Benefits of Membership Committee (BMC), which recommended against granting support. A second request, made in 2018 through his solicitors, met the same fate.
The MDU’s position was clear: Tolias’s “claims made” policies should have answered the claim. However, because he had not notified the potential claim before leaving the MDU, neither the MDU nor the new insurer was liable. The right to request discretionary assistance from the MDU survives the end of membership if the event in question occurred during membership, but timely notification is critical—something Tolias had failed to do.
The case ultimately hinged on whether the MDU’s refusals were a lawful exercise of its discretion. Tolias argued for broad disclosure of the MDU’s past decisions in similar cases, hoping to show inconsistency or unfairness. The MDU countered that only cases involving similar facts - specifically, those where the availability of other insurance was at issue - should be disclosed.
The High Court, presided over by Master McQuail, sided with the MDU’s narrower approach. The judgment stressed that disclosure must be reasonable and proportionate, especially given the potential costs and confidentiality concerns. The court found that the likelihood of finding relevant material in a broader set of cases was small, and that the MDU’s proposal would capture any documents of real probative value.
The ruling also highlighted the operational challenges insurers face when responding to wide-ranging disclosure requests. The MDU had estimated that reviewing all potentially relevant case summaries could cost up to £80,000, with further costs for confidentiality reviews possibly reaching £240,000. The court accepted that such expenses were disproportionate, especially when more targeted disclosure would suffice.
