‘Vulnerable patients were taken advantage of by a senior consultant who was given a high level of responsibility and autonomy in the private sector. We now need to consider better monitoring of surgeons operating in the private healthcare sector including independent and rigorous appraisals, review of surgical rates and procedures, together with proper investigation of any concerns raised about a surgeon by his colleagues and patients.’
‘What this case also shows is that, for those injured by Paterson, the only real difference between NHS and private medicine is that when private patients receive negligent care, it can be more difficult to obtain adequate redress and compensation than NHS patients. That surely is a discrepancy that cannot be allowed to continue.’
Most people would assume that patients who have been harmed by negligent doctors in the private sector have the same protection as those injured in the NHS, but this is not always the case. If a rogue surgeon such as Paterson harms a patient in an NHS hospital, as an ‘employee’ the NHS Trust involved is liable for any proven negligence by their ‘employee.’
However, clinicians treating patients, such as Lesley Cuthbert, in the private sector are not ‘employees’ of the private healthcare company which is merely offering them facilities and practicing privileges in that particular location. The clinician is personally liable for their own actions.
The General Medical Council therefore requires that all doctors (surgeons and GPs) carrying out clinical duties in private practice be adequately indemnified. What is not widely appreciated, even by some in the medical profession, is that the indemnity cover in the private sector is discretionary rather than mandatory.
There is a concern that private healthcare companies sometimes fail to check whether an individual surgeon/clinician has adequate insurance before treatment is carried out. Thus, if negligent treatment is undertaken in the private sector, there is no guarantee that a claim for compensation will be met.
Even if a surgeon is a member of an indemnity provider, cover can be withdrawn at any time and on a retrospective basis, leaving private patients in the situation of not being compensated if the claim is to be met by the individual as opposed to the private medical organisation. As a consequence, a large number of patients who had treatment privately have faced years of uncertainty in having their claims investigated and concluded.
The unusual aspects of the claims arising from the operations performed by Mr Paterson is the fact that both Spire Healthcare and the Heart of England NHS Foundation Trust were aware of the concerns raised about the type and number of operations that he was carrying out. Despite this, insufficient steps were taken to stop him, allowing him to continue to practise in the NHS and private sector, which is the reason why both Spire Healthcare and the Heart of England NHS Foundation Trust are also defendants in these claims.
‘Many victims of Paterson’s private practice remain embroiled in a needlessly lengthy and stressful legal process which may take at least another five months to resolve. We call for the introduction of a statute to protect private healthcare patients providing clear requirements of private providers to ensure that they take responsibility for the actions of their surgeons and also to assure that they are monitoring them correctly.
The monitoring process needs to be clear and consistent for all healthcare providers and there ought to be equally consistent consequences for failing to adhere to those requirements in terms of patient care. Ideally, Shoosmiths would also like the process to impose a duty on medical professionals to report issues to the GMC in a prompt manner if adverse issues are identified about a surgeon.’
For further information please contact: Allan Bisset
Phone: 03700 866736
Email: [email protected]
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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 2023