This article is published as part of Capsticks’ Medical Malpractice Forward View 2022.

The Court of Appeal decision in Hughes v Rattan (2021) will be of particular significance for private sector healthcare where services are being provided under a contract with the NHS. The appeal was heard on 13 January 2022 and judgment is awaited. Hughes was the first High Court decision regarding the scope of non-delegable duty / vicarious liability in a dental context. The practice owner held a GDS contract, but the dental associates who treated the Claimant had control over how treatment was provided. The court held that the Defendant retained sufficient control to justify imposing vicarious liability.

We could see more of these cases as the private sector plays a role in ‘Covid recovery’, but the outcome is likely to depend on the precise structure of the relationship. Private sector providers engaged in this work will need to consider contract and indemnity provision carefully. Read our Insight on legal and practical considerations for vicarious liability and indemnity arrangements, including our top tips on dealing with this issue.

On its face, the Court of Appeal decision in Paul & Paul v Royal Wolverhampton NHS Trust (2022) is welcome news to Defendants, although it may be more a question of “watch this space”. The key issue for the Court to determine was whether the gap in time between the negligent treatment (for Mr Paul’s cardiac problems) and the horrifying event (his death from a heart attack witnessed by his daughters, 14 months later) meant that ‘proximity’ between the two was not established in law. The appeals (which included two conjoined cases of Polmear and Purchase) were dismissed, based on the Court being bound by its earlier decision in Taylor v A Novo Ltd (2013). Lord Vos MR indicated that he was willing to hear argument on leave to appeal.

We understand the application to the Court for permission has been made and is opposed by the Defendant. In his obiter comment Underhill LJ went so far as to say that “if the point were free from authority, I would be minded to hold that on the pleaded facts the Claimants in all three cases should be entitled to recover”. 

Medical Malpractice Forward View 2022 

This article is part of Capsticks’ Medical Malpractice Forward View 2022. 

Read the other articles featured in this publication below: 

• Spotlight on two liability decisions to watch out for in 2022
• Fixed recoverable costs in low value clinical negligence claims are on the horizon
• Concussion injury in elite sport will remain in the headlines
• Inquests: failures of care during the pandemic may be scrutinised more closely, but ‘following the science’ will likely continue to be the dominant theme on causation
• Procedures and policies, including national policy decisions, will be central to the defence of Covid-related claims
• The latest on the Covid-19 Public Inquiry
• Learning from the Paterson Inquiry: new legislation on regulation, co-operation between regulators and more
• The rollout of technology to support the delivery of care will continue apace, with data security coming into ever sharper focus
• There is likely to be an increase in the number of clinical trials
• Safety of medicines and medical devices will come under closer scrutiny

Get in touch

Aiming to be the firm of choice for medical malpractice insurers and healthcare providers, we advise and support on all aspect of medical malpractice claims and inquests. 

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan, Sarah Bryant or Ed Mellor.