Court considers contractual liability for private hospital treatment

This case concerned the question of whether the defendant hospital group was contractually liable for the medical services of a consultant orthopaedic surgeon and a consultant anaesthetist, in relation to private hip surgery carried out at the defendant’s private hospital. On analysis of the contractual position in this specific case, the court dismissed the claimant’s argument that the defendant hospital group was contractually liable for private medical treatment provided by the self-employed consultants.

This case will be of interest to both claimants and defendants, in relation to liability for private hospital treatment in clinical negligence cases, in particular where there are difficulties in pursuing and/or tracing the individual consultants. 

The claim

In 2015, the claimant underwent private hip surgery at the BMI The Edgbaston Hospital (the Hospital). The claimant’s primary allegation was that the anaesthetic care during the surgery was negligent and that this caused him to sustain a catastrophic brain injury. The claimant's representatives sent a pre-action Letter of Claim to the treating consultant anaesthetist, but found the anaesthetist had erased himself from the GMC register and appeared to be working in the United Arab Emirates. At the time of the claimant’s surgery, the consultant anaesthetist had been a member of the Medical Defence Union (MDU), but the MDU confirmed it did not represent him and had no legal interest in the claim against him. In pre-action correspondence, the orthopaedic consultant denied causing any injury by any breach of duty by him.

As the consultants had not accepted responsibility, the claimant (by his Litigation Friend, his father) issued a Part 8 claim against the defendant hospital group (which had subsequently changed its name from BMI Healthcare Limited to Circle Health Group Limited), seeking a declaration as to the scope of the contractual obligations owed by the Hospital. The issue of whether there had been any negligence was not for the court to determine in these proceedings; it was only the contractual position to be determined.

The claimant’s position was that there was no contract between the claimant and either of the two consultants and that the Hospital was contractually responsible for all inpatient surgical and anaesthetic services provided by the consultants. The Hospital accepted it was responsible for some services, including nursing care, food, accommodation and surgical facilities, but denied responsibility for the services of the consultants.

The contractual evidence

The claimant’s surgery was paid for privately. The contractual documentation between the claimant and the Hospital was agreed to include a covering letter, a quotation for surgery which  included “Consultants’ operating fees” and the BMI Self-Pay Terms and Conditions. The orthopaedic consultant had also raised a separate invoice for his initial consultation with the claimant, payable to a research centre from which the consultant worked. Key to the judge’s decision, the Hospital’s contractual documentation included the following terms:

“All consultants are self-employed and provide their services direct to the patient.

Your quote will state whether the consultant's fees for the procedure and the follow up (but not the initial consultation fee) are included in the quoted price. If the fees are included, the hospital will usually collect the consultant’s fees as agent but occasionally, you will receive a separate invoice from the consultant for his portion of the procedure cost. If this occurs, the package price will be automatically reduced by the amount of the consultant's fees.

The initial consultation fee with the consultant is a separate fee (outside the package price) which will be invoiced to you directly by the consultant."

The decision

The court held the claimant had a contract with the consultants and that the defendant was not contractually liable for the care and surgery provided by those consultants.

The court considered all of the contractual terms and referred to the judgment in Network Rail Infrastructure Ltd v ABC Electrification Ltd [2020] which provides as follows:

 “When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean.”

The court found that a reasonable reader would not consider that the terms included the provision of surgical services by the Hospital directly to the claimant, rather than by the consultants themselves. Instead, the purpose of the contract with the Hospital was to provide a fixed fee package for the surgery, which included the fees charged by the consultants for their services, which were provided directly by the consultants to the claimant and not via the Hospital. The following points, in summary, were key to the court’s analysis of the contractual documentation as a whole and the ultimate decision reached:

• The claimant’s contract with the Hospital did not include everything that related to the surgery, e.g. the initial outpatient consultation.
• The term confirming consultants “provide their services direct to the patient” supported that “the consultants do not work for BMI and provide their services independently and separately to BMI”.
• It was clear that the Hospital was collecting the consultant fees as agent only.

The court found there was a contract between the claimant and the consultant orthopaedic surgeon, given the following factors:

• The claimant met the orthopaedic consultant “to discuss and be assessed for surgery”.
• The contract with the Hospital confirmed the orthopaedic consultant “would provide his services directly to the Claimant”.
• The orthopaedic consultant “raised an invoice directly” for the initial consultation.
• The fact the claimant was “consented for Surgery” by the orthopaedic consultant “and agreed to undergo the surgery” means there was an offer to provide a service which was accepted.

The court also found there was a contract between the claimant and the consultant anaesthetist, given the following factors:

• Whilst there was no meeting prior to the day of the surgery, the consultant anaesthetist consented the claimant on the day and “the Claimant was aware that he was carrying out the role of a consultant in respect of the anaesthetics to be provided during the Surgery”.
• Under the terms of the contract with the Hospital, the consultant anaesthetist “would be providing his services directly to the Claimant”.

In respect of both consultants, there was no need for there to be any discussion with the claimant on costs or how fees were to be paid, as these matters had been dealt with by the contract with the Hospital.

Comment

This decision reinforces the existing position that a private hospital provides all the services which make the surgery possible, but the consultants themselves have a direct contractual arrangement with the patient. However, the Deputy High Court Judge emphasised that the decision was fact specific and that the contractual evidence in each individual case needs to be assessed in order to confirm who is liable for medical services of consultants at a private hospital. 

The finding of a contract between the claimant and the consultants is important, and particularly noteworthy in relation to the anaesthetist consultant who had no contact with the claimant prior to the surgery. The decision meant the claimant was not left without any legal remedy, and could pursue a claim in both contract and negligence against the consultants.