34LWhen is an exceptional claims indemnity payable?

#### 34L When is an exceptional claims indemnity payable? Criteria for payment of indemnity (1) The Chief Executive Medicare may decide that an exceptional claims indemnity is payable in relation to a liability of a person (the practitioner) if: (a) a claim for compensation or damages (the current claim) is, or was, made against the practitioner by another person; and (b) a qualifying claim certificate is in force in relation to the current claim; and (c) the liability is a qualifying liability of the practitioner in relation to the current claim (see section 34M); and (d) because of the practitioner’s contract limit in relation to the contract of insurance identified in the qualifying claim certificate, the contract does not cover, or does not fully cover, the liability; and (e) the amount that, if the practitioner’s contract limit had been high enough to cover the whole of the liability, the insurer would (subject to the other terms and conditions of the contract) have been liable to pay under the contract of insurance in relation to the liability exceeds the actual amount (if any) that the insurer has paid or is liable to pay under the contract in relation to the liability; and (f) the aggregate of: (i) the amount (if any) the insurer has paid, or is liable to pay, in relation to the liability under the contract of insurance; and (ii) the other amounts (if any) that the insurer has already paid, or has already become liable to pay, under the contract in relation to the current claim; and (iii) the amounts (if any) that the insurer has already paid, or has already become liable to pay, under the contract in relation to other claims against the practitioner (being other claims that were first notified to the insurer no later than the time the current claim was notified to the insurer); equals or exceeds the relevant threshold identified in the qualifying claim certificate; and (g) a person has applied for the indemnity in accordance with section 37A. > Note 1: For how paragraphs (e) and (f) apply: (a) if there are deductibles—see section 8B; or (b) if a high cost claim indemnity or a run‑off cover indemnity is paid or payable—see section 34D; or (c) if the insurer is a Chapter 5 body corporate—see subsection (4); or (d) if the claim relates to a series of incidents some, but not all, of which occurred in the course of the provision of treatment to a public patient in a public hospital—see section 34N; or (e) if the claim relates to a series of incidents some, but not all, of which occurred after the exceptional claims termination date—see section 34O. > Note 2: For the purpose of subparagraphs (f)(i) and (ii), payments and liabilities to pay must meet the ordinary course of business requirement set out in subsection (3). Who the indemnity is payable to (2) The indemnity is to be paid to the person who applies for it. > Note: For who can apply, see section 37A. Ordinary course of business test for insurance payments (3) An amount that an insurer has paid, or is liable to pay, under a contract of insurance does not count for the purpose of subparagraph (1)(f)(i) or (ii) unless it is an amount that the insurer paid, or is liable to pay, in the ordinary course of the insurer’s business. What if the insurer is a Chapter 5 body corporate? (4) If an insurer is a Chapter 5 body corporate: (a) a reference in paragraphs (1)(e) and (f) to an amount that the insurer is liable to pay under a contract of insurance is a reference to an amount that the insurer is liable to pay under the contract and that is a provable amount; and (b) a reference in subsection (3) to an amount that an insurer is liable to pay in the ordinary course of the insurer’s business is a reference to an amount that the insurer is liable to pay, and would be able to pay in the ordinary course of the insurer’s business if it were not a Chapter 5 body corporate. ART review of decision to refuse, or to pay a particular amount of indemnity (5) An application may be made to the Administrative Review Tribunal for review of a decision of the Chief Executive Medicare to refuse an application for exceptional claims indemnity, or a decision of the Chief Executive Medicare to pay a particular amount of exceptional claims indemnity. > Note: Section 266 of the Administrative Review Tribunal Act 2024 requires notification of a decision that is reviewable.