EWJ June 61 2025 web - Flipbook - Page 10
Private Hospital Liability
Post Bartolomucci
By Jonathan Bonser & Louise Kane - www.dacbeachcroft.com
Overview
DAC Beachcroft have successfully defended Circle
Health Group Limited in the Part 8 claim of James
Donald Bartolomucci (a protected party suing by his Litigation Friend James M Bartolomucci) -v- Circle Health Group
Limited [2025] EWHC 529(KB) (Bartolomucci for short).
The surgery was performed following agreement to
contractual documentation sent to the Claimant by
BMI under cover of a letter dated 23 April 2015, offering a self-paying fixed price package (the Contract).
The extent of the contractual obligations set out in
those documents formed the basis of the claim.
The Judgment has implications on how patient terms
and conditions should be drafted, to ensure clarity
regarding the lines of liability between treating
consultants and the hospital.
Although the anaesthetist had indemnity cover
through a medical defence organisation (MDO), that
MDO indicated that they were not representing the
anaesthetist and had no interest in the claim intimated
against him. The anaesthetist was, therefore, unindemnified in a claim for very significant damages.
Background
Bartolomucci belongs to a line of cases where a
Claimant in the tort of negligence is presented with a
potential defendant who cannot meet the compensation claimed. This usually occurs where the potential
defendant has no effective insurance or indemnity
cover. The Claimant is then forced to find ways of pursuing other parties for compensation through claims
based, for example, in vicarious liability or non-delegable duty of care. Bartolomucci represents a variation on this theme and was pleaded in straight
contract. The claim is specific to medical negligence
in private hospital settings.
The claim
Virtually all, if not all, medical negligence claims are
pursued through what are known as Part 7 proceedings which plead a full claim potentially allowing for
extensive written and oral evidence from lay witnesses
and experts. The Claimant in this case issued Part 8
proceedings against Circle. Such Part 8 proceedings
allow for only limited, if any, oral evidence. The
Court's findings are to be based largely on an interpretation and analysis of limited documentation.
These Part 8 proceedings sought various declarations
from the Court in contract, which, if successful, would
then be applied in conventional Part 7 medical negligence proceedings. The Claimant sought declarations
that the services provided pursuant to the Contract
with BMI included all in-patient medical and surgical
(to include anaesthetic) treatment and healthcare required as part of the hip resurfacing procedure. The
Claimant also sought a declaration that Circle were liable in contract to him for the acts and omissions of the
consultants.
A common way of organising private hospital care is
for treating consultants (surgeons, anaesthetists and
others) to act as independent contractors under practising privileges within the hospital. Under this arrangement, the consultants will have their own
indemnity arrangements and it is expected that they
will be liable for any mistakes they make in performing their services. The hospital, on the other hand, will
be responsible for nursing and other care they provide. What the Claimant in Bartolomucci was arguing
was that there was a contractual obligation on the private hospital defendant, Circle Health Group (Circle,
also referred to as BMI in the Judgment and this article), that rendered them responsible for the treatment provided by the surgeon and the anaesthetist.
Circle successfully rebutted the claim, but the Judgment highlights the need for clarity in contractual
documentation with patients.
In their Defence, Circle argued that they were only
responsible for the hospital care provided by its nurses
and other such items as listed in the contractual documentation that was provided to the Claimant, but
not the care provided by the Consultants.
Contractual documentation
Although other issues were aired within the Judgment, in essence, the argument revolved around the
following documents and issues.
Facts
On 12 May 2015, the Claimant underwent a hip
resurfacing procedure. Surgery was performed by a
consultant orthopaedic surgeon with anaesthesia
being administered by a consultant anaesthetist (the
Consultants). The Claimant suffered a catastrophic
brain injury during the surgery. He has significant
care needs. In the Judgment, it is noted that the
Claimant alleges that the surgery and/or the anaesthesia were not carried out with reasonable care. He
intends to seek damages as a result.
EXPERT WITNESS JOURNAL
The covering letter sent by BMI to the Claimant's father in April 2015 stated "Following your consultation with
[the surgeon], please find enclosed details of our self-pay fixed
price package for your surgery. This offer is made subject to
the Terms and Conditions set out in the enclosed ...."
There was a Quotation attached to the covering letter
in the sum of £14,220.00 for the procedure. The items
8
JUNE 2025
