Q&As

Where C goes in for a non-surgical procedure at a private clinic, pays the deposit to the clinic and the treatment goes wrong but the clinic argues that they are not responsible and the doctor who performed the operation (from Germany) was not an employee and has his own indemnity, would the contract to perform surgery lie with the company or the doctor who performed the operation. Does vicarious liability in clinic negligence apply?

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Published on LexisPSL on 13/12/2017

The following PI & Clinical Negligence Q&A provides comprehensive and up to date legal information covering:

  • Where C goes in for a non-surgical procedure at a private clinic, pays the deposit to the clinic and the treatment goes wrong but the clinic argues that they are not responsible and the doctor who performed the operation (from Germany) was not an employee and has his own indemnity, would the contract to perform surgery lie with the company or the doctor who performed the operation. Does vicarious liability in clinic negligence apply?
  • Personal claim against the doctor
  • Claim against the company
  • The appropriate defendant
  • Unregulated non-surgical procedure

Where C goes in for a non-surgical procedure at a private clinic, pays the deposit to the clinic and the treatment goes wrong but the clinic argues that they are not responsible and the doctor who performed the operation (from Germany) was not an employee and has his own indemnity, would the contract to perform surgery lie with the company or the doctor who performed the operation. Does vicarious liability in clinic negligence apply?

A claim for damages will be brought under contract and/or tort law. Where a tort has been committed, the legal tests of establishing that there has been a breach of duty which has caused some harm or loss will apply in a medical negligence action. The standard of care expected of a surgeon will be to have exercised a degree of care and skill accepted as proper and responsible by a responsible body of surgeons skilled in that particular art. The Bolam and Bolitho tests apply. See also Practice Note: Consent in clinical negligence claims—treatment and causation.

Personal claim against the doctor

A person claim against the doctor will often be the first point of investigation. However, there are several pitfalls to be considered:

  1. the doctor may not have adequate insurance. Even where they do, there may be a hefty excess which the doctor cannot pay

  2. there may be a dispute between the

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