17 February, 2020
You may remember the headlines about Ian Paterson, the cancer surgeon, who treated thousands of patients and performed botched and unnecessary operations in NHS and private hospitals, as well as exaggerating or inventing cancer risks and claiming payments for more expensive procedures over a 14-year period.
Paterson was employed by Heart of England NHS Foundation Trust (HEFT) but had practising privileges at the private hospital of Spire Parkway and Spire Little Aston in Birmingham (Spire). He had performed these botched and unnecessary operations whilst actually employed as an independent private contractor and was not an employee of Spire. This has led to a gap in liability.
The key difference between the NHS and private healthcare is insurance. The NHS is liable for compensation as doctors are employees and NHS Resolutions manage the costs that arise when things go wrong. However, in private hospital, doctors are contractors, so the insurance burden falls on the doctors themselves to provide cover as they have the authority over the welfare of the patients. However, there is no guarantee that their insurance will provide cover if things go wrong or even be valid.
Private hospitals are only to insurer for items including the technology, nurses, the building and the infrastructure.
In April 2017, Paterson was convicted of 17 counts of wounding with intent and three counts of unlawful wounding relating to nine women and one man, whom he had treated as private patients between 1997 and 2011. Paterson was sent to prison for 15 years. His jail sentence was felt to be too lenient and was increased by the Court of Appeal to 20 years in August 2017.
Paterson has recently been back in the headlines due to the outcome of the civil cases and an independent inquiry.
The private patient victims had to pursue compensation through the Courts, whilst the NHS patients received pay outs quicker and no doubt NHS Resolutions were involved.
Paterson's civil trial was initially due to take place in October 2017. In September 2017, the defendants to the claim jointly established the 'Ian Paterson (Liability to Private Patients) Compensation Fund'. A fund of around £37m was available to compensate Paterson's private patients, of which Spire contributed £27.2m. These meant that the approximately 750 private patients accepted on average £49,600 each in an out of Court settlement, while NHS victims received £62,815.
An Independent Inquiry launched in May 2018 was set up following the conviction of surgeon Ian Paterson, to review the circumstances surrounding Ian Paterson's malpractice. The Inquiry's aim was to learn lessons and to make recommendations to improve the safety and quality of care provided both privately and by the NHS. It was found that Spire was 'misleading' patients and 'giving the impression' that they are employed and that it is therefore responsible for them and their actions'.
In total, the Paterson Inquiry made 15 recommendations, based on hearing accounts from former patients. The recommendations include:
The Inquiry also identified 'missed opportunities' to stop Paterson and found the failure to suspend him in 2003 when an NHS colleague first raised concerns was 'inexplicable' it was not until 2012 that Paterson was suspended by the General Medical Council while he was being investigated.
Further details of The Paterson Inquiry and the full report can be found here. If you have received any medical treatment, either through the NHS or private, and would like to discuss the matter further, please do get in touch with our specialist clinical negligence team on 01254 872111.
For more information contact John Bennett in our Clinical Negligence department via email or phone on 01254 872111. Alternatively send any question through to Forbes Solicitors via our online Contact Form.