Private hospitals ‘not liable’ for consultant errors – PHA

Private hospitals should not be liable for the clinical negligence of self-employed consultants with admitting privileges, the Private Hospitals Association (PHA) told an expert group reviewing the system for management of clinical negligence claims.

The report of the expert group, established by Government in 2018, was published in December 2020.

The PHA submission to the expert group, dated August 2018, stated: “In the private hospital system most consultants are self-employed individuals granted with admitting privileges. While private hospitals are legally liable for any clinical negligence by its employees they are not, nor should not, be liable for the clinical negligence of self-employed consultants. However our members are seeing this vicarious liability emerge as an issue in recent years.”

The submission maintained that “our hospitals have a long standing and visible commitment to patient safety and quality of care”.

However, while quality and safety in member hospitals had “improved”, in parallel “the number of clinical negligence claims has increased”.

It said the Government should consider adopting a policy to “provide public information” around clinical negligence costs and “how they impact on the ability to deliver healthcare”.

The Government needs to “review the balance between access to compensation at current levels and access to health services” and should “give consideration to what is proportionate compensation for harm, including consideration to provision of future care plans against pure financial compensation”.

Historically, where a consultant was negligent, his/her indemnifier would agree to release private hospitals early from the action. However, over the last number of years, a more “adversarial approach” had been experienced where hospitals were not released from consultants’ claims and incurred significant legal costs prior to release, often at the steps of the court.
This had directly led to a significant increase in the cost of insurance for member hospitals, stated the PHA.

The submission called on Government to implement a coordinated strategy to “manage the growth in the cost of medical negligence claims”.

The expert group’s report, dated January 2020, put forward several recommendations for more efficient management of claims. The findings are being reviewed by the departments of Health and Justice. The group, chaired by Mr Justice Charles Meenan, decided against recommending the introduction of a no-fault system to deal with certain clinical negligence claims. The PHA had not commented by press time.