We have all seen slick advertisements on television extolling the benefits of private care. The current BUPA website states: ‘We’re proud to give you nothing less than health expertise’. But what happens if something goes wrong with your treatment?
In cases where treatment is provided by the NHS, if clinical negligence is established, then the NHS will pay agreed or awarded damages together with the costs of bringing the claim. The private patient is not so well protected.
The private health insurer is not responsible for the standard of care provided. Similarly, the private hospital where the treatment is carried out will not accept responsibility for the doctors who use their facilities. The injured patient is left to pursue their treating clinician.
All doctors engaged in private medicine should be members of one of the three medical defence organisation. As part of the membership benefits, the defence organisations will indemnify the doctor in respect of clinical negligence claims arising out of their private practice. Thus, a successful claimant will have their damages and costs paid by doctor’s defence organisations.
Unfortunately, defence organisations can and do withdraw indemnity from their members. The injured claimant has no claim against the defence organisation, who will routinely refuse to give reasons why the indemnity is withdrawn. The claimant will then have to pursue their claim against the clinician concerned with no guarantee that if they are successful, they would be able to enforce any award for damages.
Anecdotally, speaking to colleagues, this is becoming increasingly common. I recently acted for a man who suffered catastrophic injuries when an operation performed by a noted London Surgeon went wrong. His defence organisation withdrew indemnity and the doctor then ignored court proceedings. Substantial damages were awarded. The successful claimant will now have to attempt to enforce the award which, even if successful, will result in further delay in him being compensated.
This is a risk to bear in mind when considering private treatment.