Private clinic claims it is not liable for failings

A private clinic that treats NHS patients under contract is seeking to appeal a court ruling holding it legally liable if treatment goes wrong.

The case, believed to be the first of its kind, has exposed a potential problem with local agreements made between the NHS and private providers to cut waiting lists by contracting out routine surgery.

The case has been brought by Frances Johnson of Knottingley, near Pontefract, West Yorkshire, who was referred by her GP in 2002 to the privately run Birkdale Clinic, which carries out cataract operations on NHS patients. She had complications after her operation and was referred back to the mainstream NHS, where a further operation was successfully carried out.

Mrs Johnson, 69, sued the clinic, claiming that she was not warned that surgery carried extra risks because she had pre-existing corneal damage and that therefore she was not given a chance to weigh up the risks before deciding whether to have the operation.

The clinic, which describes itself as an “accredited provider” to the NHS, failed to file a defence within the time specified, so the court gave judgment by default in Mrs Johnson's favour without hearing its arguments. The clinic asked for the judgment to be set aside on the grounds that liability lay with the doctors who treated Mrs Johnson, not the clinic, but a district judge at Nottingham County court refused.

If the clinic's argument succeeds on appeal, it would mean that each of a number of doctors who had treated Mrs Johnson would have to be traced and sued by her individually, said her solicitor, Paul Balen of the Nottingham law firm Freeth Cartwright.

NHS hospitals are liable for treatment given by healthcare professionals working in them, but private clinics where doctors work on a subcontract basis are usually not liable for negligent treatment given by those doctors.

Mr Balen said: “Those responsible for introducing the waiting list initiative will no doubt be astonished to find private sector providers denying that they had any responsibility to NHS patients referred to them. It is entirely wrong that any NHS patients should face a legal obstacle course in order to find some organisation prepared to accept responsibility for failures in the treatment provided.

“The law and public policy should require that a clinic which accepts an NHS patient for NHS treatment owes a duty of care to that patient which it cannot avoid by delegation or the use of subcontract labour.”

A Department of Health spokesman said national contracts now ensured that NHS patients treated by private providers were covered by the NHS indemnity scheme and the clinical negligence scheme for trusts.

But for those patients referred under “old” local contracts the position is not straightforward. Mr Balen said he hoped the NHS litigation authority, which has been sent details of Mrs Johnson's claim, would take it over and pursue it on her behalf.

Dr Promod Bhatnagar of the Birkdale Medical Group denied that there had been any negligence in Mrs Johnson's treatment.