Claims Against Private Clinics20 Oct 2014
The general rule at common law is that a Defendant is liable for the negligent act of a servant committed in the course of his employment but not that of an independent contractor.
This argument has been used by private clinics trying to exculpate themselves from liability for their self-employed clinicians. This is also what happened in one of my cases:
My client underwent a surgery at a private clinic. The surgery was conducted by a clinician assigned to my client by the private clinic. The surgery was performed negligently and my client instructed me to pursue a compensation claim. A Letter of Claim was sent to the clinician but it became apparent that the clinician disappeared from face of the earth. A Letter of Claim was then sent to the private clinic. The private clinic responded to the Letter of Claim, arguing that the clinician was self-employed and therefore they are not responsible for his actions. My client was not aware that the clinician was self-employed.
Following the general rule at common law, my client’s claim would be unsuccessful. However, there is an exception to the general rule that gives hope to all patients that have been tricked by the very complicated relationships between self-employed clinicians and private clinics.
Some private patients choose a clinic and not a specific doctor at the clinic when they make the choice about where to undergo private treatment. Many of them are never informed that their treating clinician is actually self-employed or indeed; the consequences of the clinician acting as a self-employed clinician. Patients are often not aware that if they are treated at a private clinic by a self-employed clinician, the private clinic will not take responsibility for any negligence that might occur.
Consequently, the patient would have to therefore sue the clinician direct, what s/he might find difficult in this mobile world. This is also where Woodland v Essex County Council with the non-delegable duty comes into play.
Lord Sumption’s definition of a non-delegable duty in Woodland v Essex County Council (2013) at para. 23 of the judgment is as follows:
‘The Claimant is a patient, or a child, or for some other reason is especially vulnerable or dependant on the protection of the defendant against the risk of injury.’
The judgment in Woodland v Essex County Council (2013) clarifies further qualifications as follows:
‘(2) there was an antecedent relationship between the Claimant and the Defendant, independent of the negligent act or omission itself, which placed the Claimant in the actual custody, charge or care of the Defendant, and from which it was possible to impute to the Defendant the assumption of a positive duty to protect the Claimant from harm, not just a duty to refrain from conduct which would foreseeably damage the Claimant. It was characteristic of such relationships that they involved an element of control over the Claimant, which varied in intensity from one situation to another, but was clearly very substantial in the case of schoolchildren.
(3) The Claimant had no control over how the Defendant chose to perform the relevant obligations (whether personally or through employees or third parties).
(4) the Defendant had delegated to a third party some function which was an integral part of the positive duty which he had assumed towards the Claimant; and the third party was exercising, for the purpose of the function thus delegated to him, the Defendant’s custody or care of the Claimant and the element of control that went with it.
(5) the third party had been negligent not in some collateral respect but in the performance of the very function assumed by the Defendant and delegated by the Defendant to him.’
The Supreme Court accepted that a duty of care to a patient, a child or an otherwise vulnerable person is personal and arises from an acceptance of the patient into its care or custody for treatment. This duty may not be delegated to a third party even if that party is providing the actual treatment. This assists my client in her potential claim.
When a clinic agrees to perform a surgery or provide a treatment to a patient, a relationship between the patient and the clinic is created, placing the patient in the care of the clinic. The clinic accepts the responsibility for the patient in that they provide and assign the serviceman, locum and equipment for the surgery and offer post-surgical care. From that, one can impute that the clinic assumes a positive duty to protect the patient from harm. The clinic further exercises some control over the patient in that they (the clinic) choose and assign a clinician to the patient. Because of that, the patient is deemed to be especially vulnerable as it is outside of his/her power to check the credentials of the treating clinician and/or do not have an option to decide or choose the surgeon
Considering that the treating clinician is assigned to the patient by the clinic, the onus is on the clinic to satisfy that they have done necessary and sufficient checks on the treating clinician and his insurer before offering the services of the clinician to the patient. Otherwise, you will be negligent in failing to do so.
Furthermore, it has to be considered as to whether it is fair, just and reasonable to apply the test to a private clinic. Imposing the non-delegable duty on a private clinic cannot be perceived as significant burden in that they are in control of the crucial information about the treating clinician, assign the clinician and benefit from the contractual agreement which goes to the root of the potentially negligent treatment.
The non-delegable duty in Woodland v Essex County Court gives hope for patients in private clinics that they medical negligence claims would be dealt with by the clinics and not the self-employed clinicians. Whether the test will be used for such scenario, it is still unknown.
Ewelina Ochab is a Litigation Executive with a specialist interest in medical claims. If you need advice regarding treatment that you have had you can contact Osbornes’ Medical Negligence Department for a free and confidential conversation on 020 7485 8811 (or 07860951518). Alternatively you can email either Ewelina at firstname.lastname@example.org or the Head of the Medical Department Stephanie Prior at email@example.com