Personal Injury, Serious Injury & Clinical Negligence

Recovering Damages for Medical Negligence Following Private Medical Treatment

The basic principle in bringing a claim for negligence is that, if you are injured by the negligent acts or omissions of another person, you are able to recover damages to compensate you for the injury you suffered. This principle assumes that the Defendant or their employers will have in place sufficient means to cover any claims made against them. The law has therefore made it compulsory for drivers to hold insurance to cover them for injuries caused to third parties and for solicitors firms to hold sufficient insurance to cover any potential claims in respect of the acts or omissions of their employees.

You would therefore assume that private hospitals would be under a similar legal obligation to hold insurance to cover them for the acts and/or omissions of their employees. Indeed under the Private and Voluntary Healthcare (England) Regulations 2001, private hospitals are obligated to hold a certificate of insurance to cover them for acts or omissions incurred by them which result in death, injury, public liability, damage or other loss. However, this obligation does not include the deaths, injuries, damage or losses which were caused by a private doctor practising at the private hospital as private doctors are essentially self employed.

Therefore in order to consider the position regarding private medical treatment we must consider the obligations on private doctors.

At present there are no express statutory requirements or provisions dealing with professional indemnity arrangements for registered medical practitioners or those seeking registration with the General Medical Council. There is no compulsory statutory requirement, for doctors to be a member of a medical defence organisation or to have professional indemnity or insurance arrangements.

However, since 1997 Good Medical Practice has placed a professional duty on doctors to have such arrangements in place. Paragraph 34 of the GMP states:

“you must take out adequate insurance or professional indemnity cover for any part of your practice not covered by an employer’s indemnity scheme, in your patients’ interests as well as your own.”

In order to practice in the UK, doctors must be registered with a license to practice with the General Medical Council (GMC). All doctors registered with the GMC are obligated to follow the guidance set out in Good Medical Practice (GMP). However, Good Medical Practice is guidance, not a statutory code.

If a doctor fails to comply with their obligations under GMP then they can be reported to the GMC and proceedings can be commenced to investigate their fitness to practice. Ultimately, if the GMC finds that they are not fit to practice then their licence to practice can be revoked or restrictions may be placed on the doctor’s licence.

Therefore in reality most private doctors practising in the UK, comply with their obligations under the GMP and hold some form of insurance and/ or are a member of a defence organisation. However, at present there is no guidance as to the minimum requirements for the insurance policy or the level of insurance required. Even if a doctor has obtained adequate insurance, there is no obligation on the doctor to utilise the insurance policy in the event that a claim is pursued against him. Finally, under the present system, private hospitals themselves are able to avoid culpability even in circumstances where they have received a substantial percentage of the overall fees for the private treatment.

Inadequate insurance

Insurance may be inadequate for several different reasons. Clarke Willmott were recently instructed to act in relation to a breast implant claim where the private plastic surgeon was South African. His insurance policy was a South African insurance policy even though, at the time of the alleged negligence, he had been practicing medicine in the UK. When we finally made contact with the insurers in South Africa they responded stating that even if we were to obtain a Court judgement against the Defendant in the UK, this would not be recognised in South Africa.

In other recent cases, private foreign doctors and dentists have obtained insurance policies which are valid only for the period of time that they are practicing in the UK. The terms of these policies often stipulate that cases must be reported within the period in which the insurance was in place. This causes difficulties as a) a patient may not be aware that negligence has occurred within this time frame and b) even if the patient is aware that negligence has occurred within this period and attempts to make a claim, there is no obligation on the private doctor to pass this information on to his insurers.

Failing to utilise the insurance

Obviously as with any insurance policy, if a doctor utilises the insurance, it is likely that their insurance premium will increase. Depending on the type of insurance they have this increase in premium may be substantial. As a result we are seeing increasing numbers of doctors who are refusing to utilise their insurance policies when advised of clinical negligence claims. Under the present system there is no obligation on the private treating surgeon or the private hospital to provide details of the Defendant’s insurer. Even in circumstances where you are able to locate the Defendant’s insurer or defence organisation they are unable to act until instructed to do so by the Defendant.

In circumstances where a private doctor refuses to notify his insurers and refuses to engage in the litigation process the Claimant has no choice but to obtain judgement at Court. This increases costs and leads to uncertainty for the Claimant. In the event that the private doctor does not have sufficient assets in the UK to meet the claim then the Claimant may not be able to recover the entirety of the damages awarded. If the Defendant does not have sufficient assets but is continuing to practice in the UK then the Court may make an order for attachment of earnings. If this is the case then the Claimant may have to wait several years to recover all of the money owed. This is completely unsatisfactory particularly in cases where the Claimant requires the funds in order to obtain further corrective surgery.

Private hospitals themselves avoid culpability for employing poor surgeons

When patients attend private hospitals for treatment they are frequently provided with paperwork which is headed with the logo of the private hospital. Many patients assume that they are therefore entering into a contract with the hospital and that, in the event that something goes wrong, they can pursue a claim against the hospital. However, as set out above, the contract is actually between the patient and the private doctor.

Under the Private and Voluntary Healthcare Regulations there is an obligation on the private hospital to obtain details of the doctor’s registration with the healthcare professional body (e.g. the GMC). As set out above although the GMC guidance requires all registered doctors to hold insurance, it does not, however, make any stipulations regarding the extent or nature of this insurance. There is therefore no obligation on the private hospital to ensure that the insurance obtained by the doctor is of a sufficient level to cover potential claims or that it is of a type which is suitable for clinical negligence claims.

As set out above under the present system where there are deficiencies in the private doctors insurance it is ultimately the patient who suffers. There is not currently any obligation on the private hospital to meet any shortfall. Ultimately this means that Claimant’s who require further treatment whether this be remedial dental treatment, revision breast implant surgery or revision total hip replacement, will either have to fund the cost of this remedial treatment themselves or fall back on the NHS to provide this further treatment.

In Farraj v Kings Healthcare Trust and Another [2009] EWCA Civ 1203 Dyson LJ, stated obiter that he was prepared to assume that:

“a hospital generally owes a non-delegable duty to its patients to ensure that they are treated with skill and care regardless of the employment status of the person who is treating them…”

However, to date this has not been directly applied in any other cases and therefore the current position remains that the patient must pursue the private doctor.

Next steps

In the autumn of 2009 Mr Finlay Scott was commissioned by the Department of Health (England) to examine and to offer recommendations on whether making insurance and indemnity a condition of registration was the most cost effective and proportionate way to achieve the policy objective that all registered healthcare professionals must have adequate insurance or indemnity cover. He prepared and submitted a report to minster in the summer of 2010. The report can be accessed at the Department of Health website at http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_117454. The report concluded that making insurance or indemnity a statutory requirement of registration was the most cost effective and proportionate way of achieving the underlying policy objective. The four health departments in the UK responded to the report in December 2010 with a joint statement welcoming the report and accepting the recommendations.

Accordingly, the government has advised that legislative changes will be introduced at the next most appropriate opportunity to give effect to these recommendations. However, almost 2 year after Mr Scott’s report was submitted the recommendations have still to be implemented.

Author: Vanessa Harris