Clinical negligence claims can be complex and costly, especially when they involve catastrophic, life-changing injuries such as those to the brain or spinal cord. In these cases, it is vital that victims have access to adequate compensation to cover their lifelong care and support needs. However, a loophole in the system may leave some patients under-compensated or even unable to pursue a claim.
The NHS outsources certain services, such as out-of-hours primary care, radiology, or elective surgery, to private providers to manage capacity issues and reduce waiting lists. The problem arises when a medical negligence claim is made and these providers lack sufficient indemnity insurance to cover the potential damages and costs of a successful claim, or they rely on discretionary policies that can be withdrawn at any time. Furthermore, the NHS may not be held liable for the negligence of these providers, as they could argue that they have delegated their duty of care and have no control over the quality of the service.
A client example
This situation was highlighted by the case of our client who suffered permanent brain damage after contracting meningitis at just 2½ years old. Now in her twenties, she is severely disabled and completely reliant on others for care. Our case alleged that failures in the care provided by a nurse practitioner based at an out of hours care centre, caused a significant delay in the diagnosis and treatment of her meningitis leading to her brain injury.
Background to the claim
Between Christmas and New Year of 2008 our young client became unwell. Her grandmother, with whom she lived, contacted their GP surgery, but it was closed. An automated message provided a telephone number for out of hours emergencies. On calling this number our client’s grandmother was advised to take the infant to an out of hours primary care centre based on the site of an NHS hospital.
Following an examination the child was allowed home but her condition deteriorated, and she was taken by ambulance to a children’s hospital, where meningitis was diagnosed. Despite undergoing emergency neurosurgical procedures, the treatment came too late to prevent permanent brain damage.
Indemnity position
The NHS had outsourced the provision of out of hours primary care to a private, non-NHS company (‘the centre’). The centre did not have a separate policy of insurance and was not insured for the claim, even though the NHS had provision for adequate insurance as a condition of the outsourcing contract. The nurse practitioner was self-employed and had her own indemnity insurance, but the cover was significantly below the amount required to compensate for a brain injury.
Our client (the claimant) sought reassurance from the NHS that they would cover any shortfall in professional indemnity insurance, given her significant and life-changing injuries. The NHS refused to provide that assurance and denied liability. Consequently, the claimant, as an NHS patient, applied to the court on the basis that the NHS owed her a non-delegable duty of care to protect her from harm.
The court’s decision
The NHS defended the claim, and the case went to trial. The Judge ruled that, under statutory and regulatory provisions, the NHS was permitted to outsource its out-of-hours primary care services and was not liable to indemnify the claimant.
We maintain that the judgment is unfair and unjust for a number of reasons:
- Our client remained an NHS patient throughout.
- Her grandmother took her to the centre on the advice of the GP out of hours emergency service.
- Her grandmother had no idea that the centre was not managed or fully indemnified by the NHS nor was she ever informed that it was managed by a private organisation separate from the NHS.
- She had no reason to believe that there might be inadequate indemnity insurance if things were to go drastically wrong.
- Had she been seen by a GP at the out of hours centre, rather than a nurse practitioner, the level of indemnity cover would probably have been higher.
We are also representing another client in a case against a GP who saw our client in an out of hours service, also based on the site of an NHS hospital. In that case, there was a failure to refer them to paediatricians which led to a delay in diagnosing meningococcal septicaemia. Sadly, as a result, our client had to undergo multiple amputations. Although the GP had a higher level of indemnity insurance, this is unlikely to be enough to adequately compensate our client for the treatment, life-long care, adaptations and equipment they will need.
In such cases, inadequate provision of indemnity insurance could leave claimants substantially under compensated for devastating injuries. This is a real concern.
Rogue surgeon Ian Paterson
A similar situation occurred in the case of disgraced breast surgeon Ian Paterson, who was found guilty of unlawful wounding and sentenced to 20 years for performing unnecessary breast surgeries. Shoosmiths medical negligence partner Kashmir Uppal has first-hand experience, having represented several of Paterson’s victims. The Medical Defence Union withdrew insurance cover, which meant that when cases went to trial other defendants had to be found. Due to the unique circumstances, which included warnings from the trust to the private hospital where Paterson practiced, the private hospital group employing Ian Paterson agreed to settle all the cases. The NHS also contributed to the initial tranche of settlements following the conviction. However, under current law, there was a risk that if the case had proceeded to trial in October 2017, the judge could have ruled that the private healthcare provider was not liable, as they did not employ Paterson and were not therefore vicariously liable for his actions.
Conclusion
As more care is outsourced to the private sector, it is crucial to ensure there are no loopholes in indemnity cover that could leave victims of clinical negligence under-compensated for their injuries as in the cases of our clients.
Where services are outsourced under an NHS initiative, the NHS generally remains liable for any claim arising from negligent care, except where the outsourcing contract mandates adequate cover. However, even in such cases, the NHS should remain liable for any shortcomings, as patients are typically unaware of the indemnity provisions and have no reason to question them, believing they are receiving NHS, rather than private, medical treatment.
There is a need for statutory reform to ensure that the NHS cannot contract out of indemnifying private healthcare providers, thereby ensuring adequate indemnity for all providers of NHS-funded care.
Disclaimer
This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2025
