Following an appointment with your GP, you are referred for further investigation at the hospital. You are told that you will have to wait 6-8 weeks before you receive an appointment. Who knows when you will be seen. And what if you need surgery? How long will you have to wait then? What do you do?

NHS waiting

This is sadly becoming a more common scenario. As NHS waiting lists increase, more and more people are making the decision to go and see specialists privately.

When things go well, it is definitely reassuring to get the answers and the treatment you need straight away, and for a vast majority of patients this is the end of the matter. But what happens when things go wrong?

There is a professional duty on doctors to have professional indemnity arrangements in place and most are insured through a specialist membership organisation such as the Medical Defence Union (MDU) or the Medical Protection Society (MPS). These organisations act in a similar way to your car or house insurers and therefore most patients do not even need to give these insurance arrangements a second thought.

However, there is currently no legal requirement on private hospitals or health insurers to check that this cover is renewed or remains adequate, and recent press coverage regarding consultant surgeons such as Rod Irvine (consultant gynaecologist) and Ian Paterson (breast surgeon) illustrates the consequences of this loophole.

General Medical Council

Both Mr Irvine and Mr Paterson were suspended pending investigations by the General Medical Council (GMC) over concerns that they had potentially mistreated large numbers of patients. Whilst patients who received negligent treatment under the NHS are being compensated, those who have seen the same surgeon privately are finding their path for justice less straightforward.

Mr Paterson reportedly did have cover under the MDU, but the MDU decided to invalidate his policy following a criminal investigation into his practice. The position in relation to Mr Irvine is uncertain, but it appears he may have had no cover whatsoever, despite continuing to see patients at a number of different hospitals and remaining on the panels of a number of recognised private health insurers.

Unfortunately in this situation, the only course of action for patients is against the consultant themselves. This is risky and may prove fruitless if the surgeon’s assets are limited, particularly in cases where patients have suffered life-changing injuries or where large numbers of patients have been affected. The shocking result may be that one patient is compensated whilst others lose out simply because their case is resolved first.

What about the hospital where you saw the consultant? The fact is that in a majority of cases, surgeons in private hospitals are self employed rather than employees so although it may be possible to try to pursue the private hospital (and ground breaking attempts are being made to develop the law in this area) the likelihood is that the surgeons are working independently, only renting rooms within the hospital to see their patients.

Negligent treatment

So, what should you do if you think you have received negligent treatment following private care? The key is to act as quickly as possible. You should firstly seek advice to find out whether you have a claim. If there does appear to be negligent treatment, your solicitor will contact the potential defendant to establish whether they have insurance in place. In the majority of cases the defendant will provide details of their medical insurer/indemnity organisations. However if they do not, your solicitor may need to investigate further to confirm whether cover is in place. If no cover is available; your solicitor can take steps to find out what assets, if any, the surgeon may have and explore alternative ways in which any compensation may be funded. However, in such cases the chances of being fully compensated for your injuries are drastically reduced.

There is no doubt that something needs to be done to protect private patients who find themselves in this situation. Changes have been proposed to give the GMC new powers to check doctors have appropriate cover in place for their practice, but this is only a recent proposal and will probably not be in place for some time. Similar requirements also need to be placed on private hospitals and private health care providers, although no such proposals have been made as yet.

If a car driver has their car insurance invalidated, the Motor Insurers’ Bureau can step in to assist. Similar safeguards need to be put in place to assist private patients. I am hopeful that with the increasing publicity of rogue surgeons who fail to maintain adequate insurance/indemnity cover in breach of their professional and ethical obligations will help to fix the current loophole that exists. In the meantime, patients seeking private care remain vulnerable.