Thursday, 21 May 2015

Small Print

Do private healthcare patients read the small print? They should do.

If something goes wrong, who will be responsible?

In cases in which I have been involved it is very rare to find that the doctors and surgeons were directly employed by a private healthcare provider. So, who is liable if the surgery is negligently performed or if the doctor makes a wrong diagnosis?

Is the provider - the cosemtic surgery clinic advertising in the back of Cosmopolitan - liable for the negligence of the surgeon? Or is its function and responsibility limited to introducing the patient to a surgeon, such that the surgeon is personally liable for his or her negligence and no-one else?

In my own experience defendant private healthcare providers offering services ranging from cosmetic surgery to psychiatric care, often deny that they are liable for the negligent acts and omissions of the doctors and surgeons providing those services. As a barrister representing clients in ongoing litigation in which this issue has arisen, I do not believe it would be proper for me to give my opinion in this blog post on whether or not that is a valid defence. However, I do believe that patients (or "clients" as many within the private healthcare sector prefer to say) and potential patients are entitled to know what questions to ask and enquiries to make before they enter into a contract for private healthcare. They are entitled to know in advance who would be liable if something went wrong, and how they would be able to seek redress.

I have found that many claimants who have entered into a contract for private healthcare and who have paid money to the Defendant organisation, have been surprised to find that when something goes wrong, the provider contends that the acts and omissions of the individual medical or surgical practitioners were not their responsibility.

It is common in the cosmetic surgery industry for defendant providers to contend that they were providing an introduction service only. The patient has paid £5,000 to the provider, but it is merely introducing the patient to the surgeon.

There are many questions that potential patients ought to ask. I am restricting my comments to the question of legal liability. My advice to (potential) patients is:

  1. Read carefully the contractual terms and conditions.
  2. If the terms and conditions refer to the surgeons and medical practitioners  as being "independent contractors" or "having their own insurance" etc. then it is likely that the hospital or clinic will deny liability for the negligence of those practitioners if something goes wrong. Are you happy to proceed with the treatment or procedure if that is the case?
  3. If in doubt, ask the clinic or hospital directly whether it would be liable for any negligent acts and omissions of the surgeons or doctors who will provide your care and treatment. If you wish, ask for them to put any acceptance of (potential) liability in writing.
  4. If the clinic or hospital says that it would not be liable, then you need to check the insurance cover of the practitioners who will be treating you.
  5. In my opinion you ought not to accept anything less than proof that the medical or surgical practitioners have full professional indemnity insurance with the MDU, the MPS or similar organisation.
  6. Practitioners who have insurance with an insurer from their home country (other than UK) may not have insurance which is the same as full professional indemnity insurance. Check whether the insurance covers negligent advice as well as negligent performance of surgery, for example. Would the insurance remain effective even if a claim was made after the period of insurance had expired? Consider how difficult it might be practically to make a claim for compensation in the event of negligent care? 
  7. Check whether they are registered with the GMC and whether they have specialist registration (you can do this on-line).
  8. If the provider asserts that the surgeon or medical practitioner who will treat you is not their responsibility, then ask whether therefore there is a contract between you and the surgeon or doctor. If there is one you should see the terms and conditions. 
  9. You are entitled to ask the clinic or provider about the surgeon or doctor's experience, success rates, complaints, claims or patient feedback.  They might not provide such information, but if you do not ask you will not know. Don't rely solely on message boards on the internet (who are the people posting their endorsements?). Ask the clinic if it keeps such records and what can they tell you. Broad generalisations such as "He is one of our best surgeons" are meaningless. Ask specific questions. If the clinic is at least accepting responsibility for introducing you to a surgeon, these questions will help you decide whether you are confident that the clinic has take reasonable steps to ensure that the surgeon is skilled and proficient, or at least, competent.
  10. If in doubt or you feel uneasy about the question of potential liability, go elsewhere or, if the surgery or treatment is elective, postpone or cancel it.