Bevan Brittan establishes private hospital owed no vicarious liability, non-delegable duty or contractual liability to patient

Geraint Mabey v Mr Kulkarni and St Joseph’s Hospital

Bevan Brittan acted on behalf of St Joseph’s, a private hospital, and established at a preliminary issues trial that the hospital was not vicariously liable for a private surgeon at the hospital, nor in breach of their contract with the Claimant, and that there was no non-delegable duty.

Background

Mr Kulkarni, an orthopaedic surgeon, carried out shoulder surgery on the Claimant at St Joseph’s Hospital in March 2017. Post-operatively the Claimant developed complications and was seen and treated by Mr Kulkarni during several outpatient consultations in April to May 2017 and June 2018, with further shoulder surgery carried out in July 2018. In October 2018 the Claimant was diagnosed with osteomyelitis affecting his mobility and function. Damages were claimed at around £500,000. All treatment in question was provided to the Claimant on a private basis.

Allegations

Against Mr Kulkarni, the Claimant alleged that during the post-operative outpatient consultations, he failed to investigate or treat potential signs of infection leaving the Claimant with permanent shoulder symptoms. There were no allegations of negligence against the hospital. Instead, the Claimant alleged they would be responsible for any negligence found against Mr Kulkarni by virtue of vicarious liability, their contract with the Claimant or because they owed a non-delegable duty to him.

Defence

The hospital denied vicarious liability on the basis that Mr Kulkarni was an independent contractor rather than an employee of the hospital. The hospital also denied there would be any breach of contract if Mr Kulkarni was found negligent because the contractual documentation made it clear the hospital was facilitating rather than providing treatment and was not responsible for Mr Kulkarni’s acts or omissions. Finally, the hospital denied owing a non-delegable duty to the Claimant extending further than their vicarious liability or contractual duty.

Procedural course

In the absence of any allegations of negligence against the hospital, we pressed the Claimant to discontinue his claim against the hospital and proceed against Mr Kulkarni only, but he refused.  We therefore applied for a trial of preliminary issues, to determine at an early stage whether in principle the hospital could be responsible for Mr Kulkarni’s alleged negligence. Mr Kulkarni was joined as a party to the preliminary issues trial.

Judgment

After a two-day preliminary issues trial before His Honour Judge James, judgment was reserved and later handed down orally. HHJ James found for the hospital all on three counts:

• Vicarious liability – Mr Kulkarni was not an employee of the hospital and did not have a relationship with them akin to employment. Referring to Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, Cox v Ministry [2016] UKSC 10 and Hughes v Rattan [2022] EWCA Civ 107, the Judge held there was no employment contract and Mr Kulkarni did not receive wages as a consultant from the hospital. He was responsible for arranging his own tax and National Insurance affairs, professional indemnity insurance and professional development. He was free to work at other hospitals and refer patients elsewhere. He was in control of the hours he worked at the hospital, the number of patients he saw and the fees he charged and the hospital had no control over his clinical judgment. Mr Kulkarni was therefore an independent contractor.
• Contractual duty – the Claimant had signed the hospital’s registration form/patient contract on 3 March 2017 before his first consultation with Mr Kulkarni. This document expressly stated that the hospital was not responsible for Mr Kulkarni's services and that Mr Kulkarni was an independent consultant rather than an agent or employee of the hospital. The Judge held that the allegedly negligent outpatient consultations were governed by this document. Mr Kulkarni’s negligence, if established, would not therefore render the hospital in breach of their contract with the Claimant.
• Non-delegable duty – the Judge considered the criteria set out by the Supreme Court in Woodland v Swimming Teachers Association and others [2014] AC 537 and held that this case was distinguishable from Hughes v Rattan [2022] EWCA Civ 107 (in which the Court of Appeal judged that a dental practice did owe their NHS patients a non-delegable duty for treatment provided by independent contractor dentists). Here, in terms of the outpatient consultations, the Claimant was a patient of Mr Kulkarni rather than the hospital. The hospital had provided administrative functions (e.g. reception services and a card machine for payments) but received no financial payment for the outpatient consultations, other than room rental. Invoices for each outpatient consultation and reports to the Claimant's GP were sent by Mr Kulkarni under the name of his limited company. The Claimant was aware Mr Kulkarni was not an agent or an employee of the hospital and the Claimant could (and in fact did, between May 2017 and June 2018) approach other hospitals for medical advice. The hospital had no control over who the Claimant chose to see and owed no contractual obligation to any third party to treat the Claimant. For these reasons, the Judge held that the hospital did not owe a non-delegable duty to the Claimant.

The Judge dismissed the claim against the hospital on the basis that: “…on the preliminary issue, no liability can arise from the allegations of breach of duty or breach of contract as against the second defendant, as alleged…”.

Comment

In addition to Mr Kulkarni, the hospital had in place similar arrangements with over 200 other consultants acting as independent contractors and these types of arrangements reflect common practice in private healthcare settings more widely. The reiteration provided by the Judge as to the limits of vicarious liability, and the determination that the non-delegable duty applicable in Hughes v Rattan did not extend to this particular private hospital/independent contractor arrangement, are both extremely helpful and should provide clarity and certainty in the private healthcare sphere more generally. In terms of practical steps, private healthcare providers and their insurers should review their contractual documentation, relating to both consultants and patients, together with their patient processes. Cases can be fact-specific (see for example Clarke v Kaleciński and others [2022] EWCH 488 (QB) in which the Judge decided that a Polish surgeon and a private healthcare clinic were jointly and severally liable for the care provided to the patient). Firm evidence to establish that the patient is the responsibility of the consultant, rather than the private healthcare provider, will therefore be key in defending allegations of vicarious liability, breach of contract and non-delegable duty.

If you would like to discuss this in more detail, please contact Helen Troman, Senior Associate or Tim Hodgetts, Partner, for further advice.

Other Bevan Brittan Updates of Interest

• Medical Tourism – Lauren Halliday April 2023
• Vicarious liability: Another helpful decision for Defendants using independent contractors – Elena Goodfellow May 2022
• Vicariously liable? Depends on the relationship – Elena Goodfellow April 2020