Medical Negligence and the Private Sector

Posted by Jacqui O'Rourke, 30th August 2017
The recent case of Ian Paterson, the breast surgeon found guilty of 17 counts of wounding with intent and sentenced to 15 years in prison, later increased to 20 years, has brought to public attention the little known issue of insurance and doctors practicing in the private sector.

Click here to read the news report in BBC.

Ian Paterson was employed as a breast surgeon by Heart of England NHS Foundation Trust. A report by Professor Kennedy brought to public attention Ian Paterson’s failings whilst working at the Trust and also criticised the NHS in how management at the Trust dealt with the situation.

Click here to read the report.

Ian Paterson also performed surgery at two private hospitals in the West Midlands.

Ian Paterson performed “cleavage sparing mastectomies” that were against national guidelines and inadequate to remove the breast cancer.  These patients were put at risk of their cancer reoccurring. Other patients were wrongly told they had cancer and had unnecessary surgery. Over 250 NHS patients have received compensation for the substandard treatment received from Ian Paterson at the Heart of England NHS Foundation Trust but his private patients are waiting for a High Court ruling later this year to see if they will receive any compensation.

The key difference between the NHS and private healthcare is insurance. In the public sector, the NHS is vicariously liable for the negligent acts and omissions of their employees (such as surgeons and nurses) and will pay out compensation if a clinical negligence case is proven. In the private sector the hospitals are responsible for the building and the infrastructure and for the actions of their nurses, but surgeons and doctors must have their own insurance because they are operating as contractors.

The insurance cover provided by defence unions to doctors and surgeons is discretionary and may be withdrawn if a surgeon’s practice falls outside of the insurance terms. This means that if a surgeon’s conduct is held to be criminal, there is no guarantee his or her insurance will be valid. In the case of Ian Paterson, his insurers have withdrawn cover for his actions. This means that even if the clinical negligence cases brought against Ian Patterson by his private patients are proven, there may not be the funds available to pay any compensation.

Here at BL Claims solicitors we have extensive experience in bringing clinical negligence claims and, due to our initial screening process, lack of insurance has not generally been an issue when bringing cases against private doctors. However, we do have a case ongoing where negligent treatment was proven against a plastic surgeon who was later found to have falsified his insurance cover. We have successfully applied to the Court for an order to recover our client’s compensation payment from the surgeon’s private assets but this is not always an option as the doctor may not have any assets that can be accessed in this way.

Many patients think they will receive better treatment if they can access medical care through the private sector but do not consider what will happen if things go wrong.  If you are considering private treatment I would suggest checking that your doctor or surgeon has appropriate indemnity insurance and don’t assume that the private hospital or clinic where it takes place will be responsible for the treatment provided. Both private and NHS patients should never be afraid to ask detailed questions about their prospective surgery including the relevant experience that the surgeon has in performing the proposed operation. Click here for advice.

Click here to read more about the case.

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