Private Healthcare Negligence

26 Jul 2023 | Jodi Newton
private hospital

Can you claim negligence against a private hospital?

Yes – it can be a little more complicated than bringing a claim against an NHS hospital. This post will explain key differences in bringing a claim against a private healthcare provider, the process involved, and how to make a complaint against a private healthcare provider.

With the ever-increasing wait times for NHS treatment, more and more people are choosing to use private healthcare providers. The number of people paying for private healthcare is at an all-time high amid frustration at NHS waiting times.

People often expect more from private healthcare providers – you pay for a better service. However, when the standard of care falls below what you are entitled to, you may be left questioning whether you can claim compensation against the private healthcare provider.

What is private healthcare negligence?

Private healthcare negligence is medical negligence in a private healthcare setting, i.e., a healthcare provider not run by the state. As with NHS hospitals, you can bring a claim for medical negligence for a range of reasons, including, for example, misdiagnosis, delayed/incorrect treatment, surgical error, and birth injuries. This is not an exhaustive list.

To be eligible for compensation, you need to be able to prove two things:

  1. The care you received fell below the medically accepted standards.

Healthcare professionals owe a duty of care to their patients. You can only claim compensation for injuries and associated financial losses if you can show that the hospital was ‘negligent’; and that this caused loss or damage to you. Negligence means making a mistake which would not have been made by any reasonably competent professional in the relevant field. If some reasonably competent professional would have done the same thing, the claim will fail.

  1. The negligence directly caused injury to you or caused an existing condition to worsen.

You must then show that the alleged medical negligence, more likely than not, caused or, at the very least, materially contributed to the injuries and any reasonably foreseeable losses. Causation is difficult to establish in medical negligence cases where many factors interplay.

The basic test for causation can be summarised as: “But for the negligence, the patient would not, on the balance of probabilities, have suffered harm in any event.”

What are the differences between private and NHS hospital negligence claims?

The main difference is who you are bringing a claim against. Trusts run NHS hospitals and clinics. The NHS Trust must ensure that all treatments and care do not fall below the medically accepted standards. With private healthcare providers, the situation can be more complex. When clinical errors occur by a consultant at the hospital, e.g., a private surgeon or another practitioner, the liability sits with them as an individual. You, therefore, bring a claim against the individual professional who has provided the treatment/care. As a result, it is not uncommon for there to be multiple defendants when a private healthcare provider is sued for medical negligence. In contrast, NHS claims often focus on the Trust as the sole defendant. This can be further complicated as private healthcare professionals often keep their own records separate from the hospital you were treated in.

With private healthcare negligence claims, it can also be tricky to determine the individual or organisation you are bringing a claim against. This is because the healthcare workers may not be employees of the hospital. If they weren’t, they would be covered by their insurance company, and your claim will need to be directed at them rather than the hospital you were treated in.

Furthermore, you may have signed a contract with a private healthcare provider. The contract may indicate what a successful outcome would look like following your specific procedure. If this has not been achieved, you may be able to pursue a case on a contractual basis.

That said, informed consent can be a more frequent issue in private healthcare claims. If a procedure is being “sold” to you, the risks and side effects may have been brushed over to make the sale. If you are unaware of all the possible outcomes/risks, you may not have informed consent for the procedure.

How do you make a complaint against a private healthcare provider?

If you feel you received sub-standard care from a private healthcare provider, you may want to make a formal complaint. You can complain directly to the provider, as most should have their own complaints procedure.

Some private healthcare providers, including some NHS Trust Private Patient Units (private units within NHS hospitals), are represented by the Independent Sector Complaints Adjudication Service (ISCAS). They have a Complaints Code of Practice, which includes a service to resolve disputes between yourself and the private healthcare provider.

You can also complain to the Care Quality Commission (CQC). This independent body inspects and regulates NHS, private health, and adult social care in England.

How do you claim against a private healthcare provider?

The claims process is similar whether you claim medical negligence against the NHS or a private healthcare provider.

Our website contains useful information and frequently asked questions you might have in bringing a claim.

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