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Medical malpractice

Published on 13 January 2021

In this chapter of our Annual Insurance Review 2021, we look at the main developments in 2020 and expected issues in 2021 for medical malpractice.

Key developments in 2020

Handed down on 1 April 2020, the two, separate, Supreme Court judgments on vicarious liability were no April Fool's jokes; in fact, they are a considered response to a serious issue, and have been heartily welcomed by many, including healthcare businesses and their insurers. 

In both cases (Barclays Bank plc v Various Claimants; VM Morrisons Supermarkets plc v Various Claimants), the Supreme Court overturned the decisions of the Court of Appeal and found that neither the bank nor the supermarket were vicariously liable for the acts of an independent contractor or a disgruntled employee, respectively.  

Of course, whilst every case will be determined on its individual facts, the two Supreme Court decisions are helpful in illustrating the general view of the Court in this complicated arena. By refusing to extend the principles of vicarious liability to both independent contractors, or employees acting far outside of the scope of their employment, we, and claimant lawyers have been given a firm steer on this area of law and restored some much-needed boundaries, which will be of great reassurance to businesses and their Insurers. 
In the healthcare arena, it is encouraging to see the Court give a strong endorsement of the principle that private healthcare providers are not vicariously liable for the activity of independent contractors, such as those with practising privileges. However, care needs to be taken by clinics and healthcare providers as to how they contract with and regulate such individuals – for example, limiting the level of 'control' that is exerted over the contractor, and considering for whose benefit the business is being conducted.

What to look out for in 2021

Whilst the COVID-19 pandemic dominated 2020 (personally, professionally, and legally), we are likely to see more significant repercussions in the medico-legal sphere well into 2021.  

Firstly, and perhaps most obviously, we may start to see claims being brought against doctors, clinicians and hospitals in relation to COVID-19 directly; whether that be the treatment received once a patient was diagnosed, or admitted to hospital, or in relation to testing and follow up; it seems almost inevitable that claims will start to emerge. 

In addition to claims arising out of the treatment (or perhaps even lack of treatment) of COVID-19 itself, we anticipate seeing a significant increase in claims arising out of the pandemic more broadly. For example, we might find ourselves defending claims against GPs for missing 'soft signs' of physical or mental illness as result of the patient undergoing an online, and remote, consultation, as opposed to a face to face one. Or perhaps we will see claims in relation to the missed, or delayed, diagnosis of other diseases (including, for example, cancer), due to a resourcing focus on the pandemic – at the detriment of other medical care.

Of course, this will cause additional concerns to our healthcare clinicians, providers, and Insurers, but it's our view that these claims will likely be defensible (although, of course, matters will be considered on a case by case basis), and, in preparation of any such claims, we would encourage providers to ensure that all decisions, treatments, and reasons for any delays are documented carefully, specifically, and in full consultation with the patient.  
Authored by Natalie Drew.

Download our full Annual Insurance Review 2021 for more insights.