Medical malpractice

In this chapter of our Annual Insurance Review 2023, we look at the main developments in 2022 and expected issues in 2023 for medical malpractice.

Key developments in 2022 

The thorny issues of vicarious liability and non-delegable duty have dominated the medical malpractice legal landscape for the last decade and 2022 was no different. The case of Hughes v Rattan (Appellant) [2022] EWCA Civ 107 saw the Court of Appeal consider whether a former owner of a dental practice was liable for treatment provided by three self-employed dentists. 

The Court ruled that the practice owner owed a non-delegable duty of care to the patient. The patient was in the practice owner's care and had signed a treatment plan with the practice. She also had no control over who treated her. On vicarious liability however the Court found that that the relationship between the practice owner and the associate dentists was not sufficiently akin to employment since, for example, the associate dentists chose the hours they worked; were responsible for their own tax, national insurance and share of bad debts; had their own indemnity insurance; and had given an indemnity to the practice owner in respect of any claims made against him. 

Notwithstanding the vicarious liability decision, the finding of a non-delegable duty of care meant that the patient's claim succeeded; and the case sets a helpful precedent for patients bringing similar claims in the future. No longer will they need to identify each individual practitioner who has given them treatment and name them as a defendant in their proceedings, they can simply sue the owner of the practice.

The take-away for insurers is that more claims are likely to be brought directly against healthcare entities and practice owners than in the past and, even if the care was appropriate, costs will be incurred in defending those claims. Insurers will therefore want to satisfy themselves that their Insureds have robust contractual arrangements in place with their self-employed clinicians and that those clinicians' own indemnity cover is confirmed. Insurers can then look to recover their expenditure from the clinicians' indemnity providers once the main claim is resolved.

What to look out for in 2023

2022 has seen extensive discussion of two Government proposals, either of which if adopted will bring a sea change to claims against healthcare professionals. The first: a fixed costs regime and the second: the House of Commons Health and Social Care Committee's "NHS Litigation Reform" report. The latter, which would introduce an independent administrative body to investigate harmful medical events in the NHS thus reducing costs and delays, has been deemed unworkable by critics and it seems unlikely that it will gain much impetus in 2023.

As for fixed costs, however, we have been waiting what seems like forever, but the Department of Health and Social Care insists that they are soon on their way for all medical malpractice cases valued at less than £25,000. This is despite loud opposition from those representing claimants who say that the proposed costs are too low, and the regime will not accommodate the complexities that come even with some low value claims. For Insurers, fixed costs are a light at the end of the tunnel after the frustrations of the QOCS (Qualified One-Way Costs Shifting) regime. The incentive for patient lawyers to accept unmeritorious claims will be dramatically diminished and insurers' defence costs spend on low value claims will surely reduce. Bring on the changes we say!

Written by Natalie Drew and Sian Morgan.

Download our full Annual Insurance Review 2023 for more insights.