A boy named Sue

If suing a hospital, it is now clear that a plaintiff must identify distinct negligence against the hospital, in addition to any findings against a private consultant.

Plaintiffs in this jurisdiction are often criticised for suing ‘everyone’, presumably on the basis that their case only needs to stick to one party. However, two recent cases – Hunt v Gormley & Ors ([2019] IEHC 316) and Mangan (a minor) v Dockery & Ors ([2014] IEHC 477) – have condemned this practice.

Indeed, plaintiffs who continue to adopt a scattergun approach to selecting defendants will be exposed, not only to judicial criticism, but potential costs orders against them.

Further, if suing a hospital, it is now clear that a plaintiff must identify, by way of expert report, distinct negligence as against the hospital, in addition to any findings in respect of a private consultant.

Considered pleadings

It is well established that, in order to instigate a claim in professional negligence against a medical practitioner, the plaintiff must possess confirmation – by way of an expert report – that the actions of the doctor constituted negligence and fell below the standard of care expected.

This stems from the decision of Barr J in Reidy v The National Maternity Hospital ([1997] IEHC 143), who held that it was irresponsible, and an abuse of process, for a plaintiff to instigate proceedings without first ascertaining that there were reasonable grounds for so doing.

This view was expanded on in Mangan, when the Court of Appeal upheld the decision to dismiss a medical negligence action against two of the three defendants in the case, on the basis that the plaintiff did not possess independent medical evidence supporting his claim against those defendants.

Impasse

More recently, in Hunt v Gormley & Ors, Mr Justice Barrett held: “The court does not see that a defence can be entered by the second and third-named defendants where it is relevant to the substance of that defence whether there is a report which specifically criticises treatment provided by the second-/third-named defendant as opposed to the first-named defendant; the solution to this impasse is firmly in the plaintiff’s hands.”

The impact of these cases has meant that plaintiff solicitors and barristers must carefully consider their approach, and be satisfied that separate and distinct grounds of negligence lie against each defendant they are pursing.

Distinct claims

In practical terms, this means ensuring that the expert commissioned to write a report is instructed to comment on the actions of each defendant and the care afforded to the plaintiff in that regard.

Further, the pleadings that issue will have to reflect the distinct claims being made against each defendant if they are to be lawfully maintained against each party.

Having established that distinct allegations must lie against a hospital, as distinct from a doctor, and in circumstances where private consultants have been routinely regarded as independent contractors, recent developments in Britain are worth noting, where they have expanded the law on vicarious liability as it applies to doctors in private practice.

British developments

In 2017, Ian Paterson, a British surgeon, was convicted of criminally wounding patients and inducing them to undergo often unnecessary treatment for breast cancer, from which he derived personal profit.

Though his private patients ought not to have had a claim in law against the hospital, Spire UK nonetheless agreed to contribute Stg £27.2 million towards a compensation fund for his patients, on the basis that “better clinical governance in the private hospitals where Mr Paterson practised might have led to action being taken sooner”.

On 4 February 2020, the independent inquiry into his practises found serious failings in clinical governance on the part of the private hospital, and “a culture of avoidance and denial”, which pervaded the system.

Though the settlement neither admits nor establishes liability for hospitals in similar situations, it does raise the question of potential liability for medical staff who are, on the face of things, independent contractors.

Five criteria

This issue was recently considered in Various Claimants v Barclays Bank Plc ([2017] EWHC 1929; [2018] EWCA Civ 1670), where a doctor, engaged by the defendant to conduct pre-employment medical assessment of employees, sexually assaulted some employees, and those employees successfully sued Barclays for the actions of the doctor. It is a significant decision, and identifies five criteria held to be indicative of vicarious liability:

• The defendant is more likely to have the means to compensate the victim, and can be expected to have insured against that liability,
• The negligent activity had been committed as a result of activity taken by the tortfeasor on behalf of the employer,
• The tortfeasor’s activity is likely to be part of the business activity of the defendant,
• By engaging the employee to carry on the activity, the employer will have created the risk of the tort being committed by the employee, and
• The employee will, to a greater or lesser degree, have been under the control of the employer.

On appeal to the Court of Appeal, Lord McCoombe affirmed the decision, adding: “It seems clear to me that, adopting the approach of the Supreme Court, there will indeed be cases of independent contractors where vicarious liability will be established.

Precise obligations

Changes in the structures of employment, and of contracts for the provisions of services, are widespread. Operations intrinsic to a business enterprise are routinely performed by independent contractors, over long periods, accompanied by precise obligations and high levels of control…

“It is clearly understandable that a ‘bright line’ test, such as is said to be the status of independent contractor, would make easier the conduct of business for parties and their insurers.

However, ease of business cannot displace or circumvent the principles now established by the Supreme Court … As has now become tolerably clear from the fields of employment and taxation law, establishing whether an individual is an employee or a self-employed independent contractor can be full of complexity and of evidential pitfalls.”

What next?

While the argument can be made that the distinct setting of an occupational health referral is not comparable to the wider private consultant setting, there could be room within the above criteria to allege a close connection between the parties that would justify such a finding.

The Court of Appeal referenced the modern employment reality of independent contractors and, in the Irish healthcare setting, the commercial reality of the relationship between doctors and hospitals must fall to be considered.

Specifically to be borne in mind is the fact that hospitals in this jurisdiction rely on, and benefit from, revenue streams generated by private clinicians working within their facility. Further, those same hospitals impose working conditions, of sorts, as well as in-house practices and policies, which must be adhered to by consultants.

Non-delegable duty

Against this backdrop, a clinician’s independence becomes less obvious, and one could argue that hospitals ought to be liable in any event, as they have a non-delegable duty to ensure patient safety once admitted to their facility.

What remains to be seen is whether the Irish courts will follow their British counterparts when presented with the opportunity to expand the law in this area. Moreover, in the medical context, it is perhaps noteworthy that the primary insurers of Irish doctors are British-based organisations, meaning that British precedents will loom large in their minds.

If the facts were right, a case could be made against a hospital for the actions of a private consultant, on the basis that it is illogical to maintain the distinction of private contractor when there exists a close connection and form of control between the parties rendering it ‘akin to employment’.

Equally, governance and oversight systems must fall to be considered if those very systems fail to spot clinical deficiencies, resulting in injury to patients.