NHS Private Treatment Case settles

Our client, Mrs S, suffered from increasingly painful and problematic bunions and was referred to the QEQM for day surgery over the summer of 2008.

In the August of that year she was offered an early operation at the Spencer Wing, a private wing at the QEQM, as part of an NHS waiting list reduction initiative, and she proceeded to surgery there in October 2008. The surgery failed despite revision operations in February 2010 and May 2011. Mrs S was left with constant severe pain in both feet.

Mrs S was extremely disappointed as she would not have agreed to the surgery had she been properly advised of the risks of failure because she had been able to cope before hand.

Upon our investigating the claim it emerged that the surgeon at the Spencer Wing was not insured for Mrs S’s treatment and was also bankrupt.

We argued that the NHS was responsible for the negligent actions of the surgeon as Mrs S remained an NHS patient whilst she was treated on the private, Spencer Wing.

The NHS resisted the claim arguing that there was no secondary liability for a doctor who performed surgery on a private basis and that Mrs S’s care had been delegated to an independent contractor.

The claim settled, however, in the sum of £37,000, in June 2013, following without prejudice negotiations.

Steve Evans, who had conduct of this matter, commented “the NHS pursued a highly tactical defence in this claim and whilst it may not have been responsible for the surgeon’s private practice there was an overarching principle that the NHS remained responsible for its NHS patient whilst she received treatment in the private hospital. This case proves that the NHS cannot effectively wash its hands of responsibility to patients on the basis of a decision to offer faster treatment at a private hospital.”

Mrs S commented “I was not advised that I was no longer under the care of the NHS and quite reasonably believed that I remained in the care of the organisation even though I had been temporarily transferred to a private hospital. This has been a long battle and I am delighted that it has all been worthwhile.”