Professional Negligence and Liability

Chapter 14



14.1 In no other area of professional negligence litigation has there developed the body of case law that has emerged over the last 60 years in respect of actions for damages for clinical negligence. 14.2 Whereas in most other areas of professional negligence the potentially negligent party is always a professionally qualified person, in clinical negligence the defendant may be a GP, responsible for his own default or that of his practice nurse or administrator, an individual hospital doctor responsible for treatment in his private practice, or a health authority or NHS trust, vicariously responsible for its employed doctors, nurses, midwives and technicians. Broadly speaking, however, as we shall see, the test of negligent treatment, advice or diagnosis would be the same. 14.3 A medical practitioner, in order to practise in the United Kingdom has to hold the registration of the General Medical Council.1 Once registered, a doctor may practise within the National Health Service as a hospital doctor (employed by a National Health Service trust, Foundation or otherwise), or as a GP (either alone, in partnership employed by a Primary Care Trust (PCT) or, following 1 April 2013 and the introduction of the Health and Social Care Act 2012, as part of a Care Commissioning Group (CCG). There are those who practise exclusively in the private sector in private hospitals, in general practice or in occupational medicine, although it is more common to find senior doctors combining NHS and private practice. 14.4 In practical terms, if a claim is brought against a GP or a doctor advising or treating in private practice, the individual doctor is nominated as defendant. The same would apply if the alleged fault was that of that doctor’s employed staff for whom he would be vicariously responsible. Although a doctor employed within an NHS hospital may be sued in his or her own name, it has been customary since January 19902 to sue the employing health authority or trust which again would be vicariously liable for the negligence of its employees.3 14.4.1 As state-funded health care is provided through increasingly varied mechanisms, for example by way of NHS referrals to provide providers or by independent contractors working within both NHS and private settings, the courts have increasingly been asked to consider which party is liable for the negligent provision of care. The principle that the operators of an NHS hospital (i.e. an NHS Trust) owe a direct, non-delegable duty of care to patients, was identified as early as 1942-see Gold v. Essex County Council;4 Cassidy v. Ministry of Health;5 Roe v. Minister of Health;6 but was not confirmed authoritatively until the Supreme Court gave judgment in Woodland v. Essex County Council.7 Even after that, it took some time for the implications of the principle to be understood for the health care sector. Thus following a series of initially controversial County Court decisions as to the liability of dental practices for the negligence of self-employed associate dentists working within the practices,8 the Court of Appeal eventually clarified in Hughes v. Rattan,9 that a dental practice owes a non-delegable care to its patients, whether care at the practice is delivered by a principal, an employee or an associate who is an “independent contractor” 14.4.2 The approach of the Court of Appeal in Hughes was consistent with that in the earlier case of Farraj and Another v. King’s Healthcare NHS Trust and Another,10 in which the Court of Appeal was prepared to assume that a hospital owes a non-delegable duty to its patients, without deciding the point. It also reflects the powerful observation of Lady Hale in Woodland that, “No one in this case has seriously questioned that if a hospital patient is injured as a result of a nurse’s carelessness it matters whether the nurse is employed by the hospital or by an agency”.11 14.4.3 The cumulative effect of Woodland and Hughes gives rise to interesting questions. Claims arising out of negligence on the part of consultants operating in private hospitals have traditionally been brought against the doctors themselves. It might be argued that, if a public hospital owes a non-delegable duty to its patients, so must a private hospital-as was the concern of the hospital operators when considering their potential liability for claims arising out of the actions of consultant surgeon Ian Paterson in Spire Healthcare Ltd v. Royal & Sun Alliance Ltd.12 14.4.4 As the NHS increasingly relies on external providers to fulfil contracts, claims relying on non-delegable duties are likely to become increasingly prevalent. See Hopkins v. Akramy,13 which concerned allegations of negligence on the part of a nurse practitioner engaged by a company which provided out-of-hours services pursuant to a contract with the PCT. The claimant relied on the proposition that there was a statutory non-delegable duty on the PCT (or in this case its successor, an NHS Commissioning Board), but the court concluded that the applicable statutory provision (s. 83(1) of the NHS Act 2006) entitled the PCT to secure the provision of services through others, and as such the duty could not be described as non-delegable; and, further that the common law principles in relation to non-delegable duties could not override this approach. The position might well have been different in relation to a private provider, in the absence of the statutory framework. 14.4.5 Before January 1990 all registered medical practitioners were members of the Medical Defence Organisations (Medical Defence Union, Medical Protection Society and Medical & Dental Defence Union of Scotland) and the damages and costs resulting from successful litigation were paid by the defence organisations regardless of whether or not the nominated defendant in the action was the allegedly negligent practitioner or his employer; the payment of damages and costs reflected what, in effect, was the practical insurance position. However, since Crown Indemnity, that is no longer the case, because the government of the day took over the indemnity of doctors in NHS hospital practice in exchange for which the defence organisations made available their residual funds. Note that the trend towards centralisation of indemnity cover within the NHS appears set to continue with the Department of Health’s GP Indemnity Review published July 2016 having led to an initial short term financial support scheme, to offset rising costs faced by GPs in purchasing indemnity against clinical negligence; this is to be followed by development of a state-backed scheme for GPs practising in England, the details of which are, at the time of writing, to be clarified. Indemnity arrangements for dentists have already undergone substantial change following the litigation which led to Hughes (such that some MDOs provide indemnity for practice owners in respect of negligence by associates), and note the concerns raised in relation to private hospitals in Spire Healthcare Ltd.14 14.4.6 Finally it should be noted that questions of vicarious liability will be decided in clinical cases as with any other, that is by reference to Various Claimants v. Barclays Bank,15 the key question being “whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant”.16 It should not be overlooked that more than one defendant may be vicariously liable for the actions of a single individual (Viasystems (Tyneside) Ltd v. Thermal Transfer (Northern) Ltd 17), and difficult questions may arise where an agency worker is loaned to an employer (see, in a non-clinical context, Hawley v. Luminar Leisure Ltd 18). This is another field in which the increased outsourcing of NHS services may give rise to consideration of different routes to liability.


1. Liability in contract

14.5 In most other areas of the provision of professional services the relationship between the professional and his client is a contractual one. Since the vast majority of medical services provided to patients are given within the National Health Service there is seldom a true contractual relationship between the parties. However, if a general medical practitioner or a specialist chooses to treat a patient privately, then the doctor will owe the patient a contractual duty to advise and treat with a proper degree of skill and care. Similarly, a private hospital or nursing home will as an institution have a contractual duty to use reasonable care to provide appropriate medical services for the advice and treatment of its patients. 14.6 It has been suggested that the relationship between a patient and his GP is, in fact, a contractual one, because on joining a general practitioner’s list, the doctor’s remuneration is increased per capita. However, the Report of the Royal Commission on Civil Liability and Compensation for Personal Injury (1978 Cmnd 7054) argues a contrary view. With the continuing changes in the arrangements by which primary care is provided (in particular contracting by the Primary Care Trusts (PCTs) with individuals and practices from 1 April 2004 onwards), and the altering approach to lists, there is an ever-lessening prospect within the NHS of the relationship between the GP and his patient being considered contractual. Conversely, however, it is now arguable that a PCT (not least because of its regulatory/managerial responsibilities for the GPs on the list for which it is responsible) owes a direct duty of care to the patients in terms of the general competence and conduct of those GPs.19 14.7 Moreover, since the standard of care demanded will usually be precisely the same, it is difficult to see the practical distinction between the duty founded in contract and that founded in tort. One can have sympathy with the view expressed by Lord Donaldson MR in Hotson v. East Berkshire Area Health Authority 20:

“…I am quite unable to detect any rational basis for a state of the law, if such it be, whereby in identical circumstances Dr A treats the patient under the National Health Service and whose liability therefore falls to be determined in accordance with the law of tort should be in a different position from Dr B who treats a patient outside the service and whose liability falls to be determined in accordance with the law of contract, assuming, of course, that the contract is in terms which impose upon him neither more nor less than the tortious duty.”

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