Medical negligence claims in private healthcare: identifying the right defendants and routes to recovery
Medical negligence claims arising from self-funded treatment can involve private hospitals, clinics, independent consultants and medical technology providers. Although the legal principles governing breach and causation remain familiar, identifying the correct defendants and an effective route to compensation may be more complicated than in claims involving NHS treatment.
For example, a hospital providing the facilities may not employ the treating consultant. Separate organisations may provide nursing care, diagnostics, equipment or rehabilitation. The increasing use of robot-assisted surgery adds another potential layer, requiring solicitors to consider clinical technique, practitioner training, hospital governance and possible device failure.
Early investigation of the contractual, organisational and financial arrangements is therefore essential.
Beginning with the contractual framework
A private healthcare claim should not begin with an assumption that the hospital is responsible for everything taking place on its premises.
Solicitors should obtain the patient agreement, quotation, terms and conditions, consultant correspondence, invoices, consent documentation and payment records. These may reveal separate contractual relationships with the hospital, treating consultant, clinic company, or another service provider.
In Bartolomucci v Circle Health Group Ltd [2025] EWHC 529 (KB), the claimant underwent private hip surgery under a fixed-price package which included consultants’ fees. The High Court held that, on the wording of the contractual documents, the hospital had not assumed responsibility for surgical and anaesthetic services provided by the independent consultants. Its responsibilities included nursing care, accommodation and surgical facilities, but the contract distinguished those services from the consultants’ care.
The limited scope of the proceedings is important. Bartolomucci determined contractual responsibility only. The court did not determine whether the hospital was directly negligent, vicariously liable or subject to a non-delegable duty. Nor does the decision establish that a private hospital can never be responsible for the acts or omissions of an independent consultant. It solely demonstrates that an inclusive price does not, without more, make the hospital contractually responsible for every aspect of treatment.
Vicarious liability and non-delegable duties
Vicarious liability focuses on the relationship between the proposed defendant and the practitioner. Relevant considerations may include contractual status, control, integration into the organisation, and whether the relationship is sufficiently akin to employment.
A non-delegable duty is different. It concerns whether the defendant undertook a positive duty to ensure that reasonable care was taken in providing a particular service, even where performance was delegated to an independent contractor.
In Hughes v Rattan [2022] EWCA Civ 107, the owner of a dental practice owed a non-delegable duty in respect of treatment provided by self-employed associate dentists. The patient had been placed in the practice owner’s care and had no control over how the treatment obligation was performed. The Court of Appeal nevertheless concluded that the practice owner was not vicariously liable, because the relationship with the associates was not sufficiently akin to employment.
The decision arose from the dental arrangements and should not be applied mechanically to private hospitals. In these cases, the patient’s choice of consultant, the hospital’s presentation of the service, the wording of the contractual documents and the allocation of responsibility will all require close examination.
Direct organisational liability
Even where a hospital is not responsible for an independent consultant’s negligence, it may face a direct claim arising from its own acts or omissions.
Potential allegations may concern nursing care, staffing, infection control, equipment, post-operative monitoring, escalation systems, or clinical records. Depending on the evidence, questions may also arise about the hospital’s procedures for granting practising privileges, assessing competence and responding to concerns about a clinician.
Practising privileges are not equivalent to employment. Equally, their existence does not necessarily protect a hospital from liability for its own governance or operational failures. The allegations must identify the duty owed and the hospital’s own breach, rather than treating the hospital as automatically responsible for the clinician.
Robot-assisted surgery: where might responsibility lie?
Robot-assisted surgery is expanding. In April 2025, NICE conditionally recommended 11 robotic systems for specified soft-tissue and orthopaedic procedures while further evidence is collected. The systems include console-controlled mechanical arms and handheld technology intended to improve precision and support minimally invasive surgery.
There is currently very limited reported English medical negligence case law specifically allocating liability following robot-assisted surgery. No separate legal test applies merely because robotic technology was used. Existing principles of medical negligence, contract, product liability and medical-device regulation will need to be applied to the facts.
Responsibility might lie with the surgeon where injury resulted from operative technique, inappropriate patient selection, inadequate consent, or use of the system beyond the practitioner’s competence. A hospital may face questions about how it checked and monitored the surgeon’s qualifications, training and competence to use the robotic system, as well as equipment maintenance, team communication and procedures for responding to malfunction. A manufacturer may become relevant where hardware, software, instructions or warnings were defective.
A 2026 review identified training, communication, cognitive workload and loss of tactile feedback as potential risks in robot-assisted surgery. However, much of its litigation material concerned the United States. This provides useful context but does not establish how courts in England and Wales will determine liability.
Where malfunction is suspected, solicitors should act promptly to preserve system logs, error messages, operative recordings, maintenance records, software versions and communications with the manufacturer. Manufacturers must report qualifying medical-device incidents to the Medicines and Healthcare products Regulatory Agency and take appropriate action to address safety risks. Device concerns may also be reported through the Yellow Card scheme.
Insurance and indemnity
Establishing an effective route to compensation may be more difficult in private healthcare because NHS indemnity will not ordinarily cover a clinician’s private practice. Doctors must hold adequate and appropriate insurance or indemnity for the full scope of their UK practice, but the General Medical Council does not maintain a central record of individual arrangements.
Solicitors should distinguish contractual insurance from discretionary assistance provided by a medical defence organisation. Membership does not necessarily create the same enforceable obligation as an insurance policy.
This difficulty formed part of the background to Bartolomucci. The consultant anaesthetist had been a member of a defence organisation at the relevant time, but the organisation later confirmed that it did not represent him and had no interest in the claim. The consultant had also left the United Kingdom. Those circumstances contributed to the claimant seeking a declaration about the hospital’s contractual responsibilities.
The position should therefore be investigated early. Solicitors should establish whether an insurer has confirmed cover or an indemnity provider has agreed to provide assistance. Evidence that a consultant produced confirmation of indemnity when obtaining practising privileges does not guarantee that a provider will ultimately respond to the particular claim.
Contract and credit-card liability
Section 49 of the Consumer Rights Act 2015 treats every consumer contract for services as including a term that the trader will perform those services with reasonable care and skill. Negligent private treatment may therefore give rise to concurrent claims in tort and contract.
Where treatment was paid for by credit card, section 75 of the Consumer Credit Act 1974 may provide an additional route against the card issuer. It generally applies where the cash price exceeds £100 but does not exceed £30,000, subject to the necessary debtor-creditor-supplier arrangements. It is the cash price of the service, rather than the amount charged to the card, that is relevant.
In Bailey v Bijlani and another [2025] EWHC 175 (KB), a patient who paid for private dental treatment using an MBNA Ltd credit card recovered against both the treating defendant and the card issuer. The issuer’s liability extended beyond reimbursement of the treatment price to damages flowing from the supplier’s contractual breach.
However, the section 75 requirements in Bailey were largely accepted rather than contested. Reported healthcare authority remains limited, particularly where treatment involves several providers, payment intermediaries or complex packages. Section 75 should therefore be investigated rather than pleaded automatically. The patient, cardholder, contracting supplier, merchant receiving payment and cash price must all be identified.
Practical considerations
Private healthcare claims require a wider enquiry than whether the treating clinician was negligent.
The solicitor must identify who undertook to provide each service, whether the hospital retained responsibility and whether an effective route to compensation exists. Where robot-assisted surgery is involved, the investigation may need to encompass the practitioner, hospital systems and device manufacturer.
The authorities provide useful guidance on contractual liability, non-delegable duties and credit card claims. Significant uncertainty remains, however, particularly around surgical robotics and complex indemnity arrangements.
Early investigation of the contractual, technological and financial framework is therefore as important as the analysis of breach and causation.