Earlier this year the rogue surgeon, Ian Paterson, was jailed for 20 years after having been found guilty of 17 counts of wounding with intent, when he carried out unnecessary surgery on a number of patients. On Wednesday 27 September the High Court approved a £37million compensation fund set up to benefit private patients treated by Paterson at Spire Healthcare Hospitals. The case had been due to come to Court next month, but settlement has now been agreed and approved, with a portion of the settlement fund being set aside until 30 October 2018 to compensate any patients who have yet to bring a claim.

The £37million fund includes a £10million contribution from Paterson’s insurers and the Heart of England NHS Trust (“HENT”), his former employer for NHS work, and £27.2million coming from Spire Healthcare. The Claimants, the private patients, sought to implicate HENT for failing to notify the private hospital of its concerns about his practice.

HENT, and NHS Resolution, which deals with claims on behalf of its member Trusts, will no doubt be relieved that a resolution has been achieved before the case came to trial, as judgment for the Claimants could have set an expensive precedent – expanding the NHS’s duty of care to patients that it has not treated.

NHS Trusts have a statutory duty to provide comprehensive healthcare to NHS patients and a non-delegable duty of care arises where the Trust has control over the patient for the purpose of performing a function (providing comprehensive healthcare) for which the Trust has assumed responsibility. So, when private healthcare providers treat NHS patients, the NHS retains responsibility for them. This means that an NHS patient who suffers an injury as a result of negligent treatment by the private provider can, in most cases, bring a claim for clinical negligence against the NHS Trust. The private provider would then have a contractual obligation to indemnify the Trust for any losses (i.e. costs and damages in a successful claim) it incurs as a consequence of the private provider’s negligence. The claims from Paterson’s NHS patients were settled separately earlier this year. Unfortunately for Paterson’s private patients, they were not able to avail themselves of this, as they were not at any point NHS patients.

The gist of the allegations against HENT appears to be that, had HENT raised its concerns about Paterson with Spire sooner, action would have been taken at an earlier stage to prevent Paterson from treating Spire patients and their injuries may have been avoided. HENT never had control over the claimants and, as they were not NHS patients, and it was under no duty to provide them with comprehensive healthcare. It could of course be argued that HENT ought to have had these patients in their reasonable contemplation. However, to extend an NHS Trust’s duty of care to cover such patients would be unprecedented and could, in theory, open up the NHS to claims from any patient injured anywhere by negligent treatment by any clinician who has worked in the NHS about whom concerns may have been raised – an onerous obligation indeed.

It is unclear what the likely prospects of success would have been for such an argument, and it is not known the exact proportions the Trust and Mr Paterson’s insurers contributed to the settlement fund. However, at a time when the NHS is dealing with ever increasing clinical negligence costs, it will be a relief that the current position has been maintained.