Who is to Blame When Private Surgery Goes Wrong?

Laura Williamson of Enable Law recently produced this article for the Personal Injury Brief Update Law Journal, reproduced here in full with their kind permission:

We are all familiar with the NHS being sued when a doctor makes a mistake. The system is not perfect, but if a doctor has been negligent, the NHS, as an entity, is liable. The victim and their family know who they can claim against. Changes can be made to working practices if necessary, and lessons learnt.

However, what happens when a mistake occurs in a private hospital?

The Cautionary Tale of Ian Paterson

Ian Paterson, the disgraced breast surgeon, was recently jailed for fifteen years. For many years he carried out unnecessary surgery, exaggerating or inventing the risk of cancer. He also carried out so-called cleavage-sparing surgery, which increased the chances of secondary cancer.

Most of the claims against the NHS have been settled. However Paterson also operated on hundreds of private patients. This surgery was carried out at hospitals owned by Spire Healthcare. So far Spire has only settled a handful of claims. Even after being suspended by the General Medical Council, and banned from NHS surgery, he continued to operate at private hospitals. A test case will be decided in October to decide whether Spire can be held liable.

How Private Hospitals Avoid Blame

Usually when an employee makes a mistake, the employer is also considered to blame, and can be sued. Often the employee doesn’t have any assets, so it makes sense to sue the company they work for.

Private hospitals however, do not employ the surgeons working in their hospitals. The doctors are self-employed. This means that the company isn’t legally to blame for the doctor’s mistakes, and for this reason, lawyers usually sue the doctor directly. Doctors have to take out insurance and often compensation can be successfully recovered. However there are times, as in the Paterson case, when the insurer can void the policy and avoid paying out.

Should Private Hospitals be Liable?

Private hospitals seem to have an unwillingness to scrutinise the doctors working in their hospitals.

If these large, global, healthcare companies knew they would be held accountable, they would surely be more likely to work towards high standards. They would put in place checks and balances to ensure that surgeons work within the guidelines. They would surely not, allow a surgeon, banned by the NHS, to work in their hospitals. As in the recent Grenfell tower tragedy, a lack of accountability seems to have allowed companies to put profit before safety.

Problems of Outsourcing/Private Care in the NHS

This is not just bad news for patients. The NHS outsources a lot of treatment to private healthcare providers. A patient may think they are receiving NHS care but actually the NHS is paying a private company to do it. The lack of NHS mental health beds means that many patients are sent to private mental health facilities. Surgery too, is commonly outsourced to private companies. My colleague Laurence Vick acted for patients who had negligent cataract surgery. This was carried out by Vanguard Healthcare who had a contract with Musgrove Park Hospital in Taunton. When compensation was sought, the NHS had to foot the bill. There is no national scheme for monitoring the care provided to NHS patients treated in the private sector.

Change on the Horizon?

A change, which would allow these private hospitals and providers to be held liable would surely be welcome. This would drive up standards in private hospitals. Not just for private patients having cosmetic surgery, but for the increasing number of NHS patients whose treatment has been outsourced. Perhaps a change will begin with the Paterson test case in October. However this may well only apply to private companies whose practices are so poor that they directly contribute to the injury, rather than cases where a surgeon has been negligent per se. However, as outsourcing increases, it will become in both the public, and the NHS’s interests, to see private companies take responsibility for doctor’s actions. Any wrong-doing needs to affect not just their reputation, but their profits.