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Duty of care for patients treated abroad
A German High Court waived the MoD and St Thomas' Hospital NHS Trust from
direct liability for a medical negligence case that occurred in an NHS-contracted
hospital in Germany. Why did the court decide that there was no duty or
obligation on the Trust to ensure that reasonable care was taken in a secondary
hospital? David Poole, acting solicitor and clinical negligence partner at
Teacher Stern Selby, talks to Greg Bousfield...
A decision by the High
Court waiving the MoD and GST from direct liability for a clinical negligence
claim occurring in a NHS-contracted hospital in Germany could well have
implications for non-military NHS-referred patients, says acting solicitor David
Poole, clinical negligence partner with firm Teacher Stern Selby.
The case (Child A v Ministry of Defence (MoD)/Guy�s & St
Thomas� Hospital NHS Trust (GST)) involves a baby born in a German
hospital to the wife of a UK soldier in 1998. As a result of negligent acts of
the treating doctors, the child suffers from severe cerebral palsy. The German
hospital was one of a number contracted by GST to provide medical services to
the MoD after the Ministry abolished its own secondary medical services.
Liability is not disputed by the hospital insurers.
The claimant sought compensation for the negligence based on English law,
arguing that the MoD and/or the Trust had a non-delegable duty of care towards
patients treated in contracted hospitals. The Court decided otherwise, explains
Poole, on the basis the MoD �had provided access to an appropriate regime of
secondary healthcare in Germany�. In respect of GST, the Court held that �it
is fair, just and reasonable that they should be under a duty, in relation to
British patients, to exercise reasonable care in procuring the services of DGPs
(Designated German Provider hospitals) and managing its contracts with them, but
no more than that�. The Court determined that there is �no basis for a duty
or obligation on the Trust to ensure that reasonable care and skill was used in
secondary, hospital treatment in Germany�.�
In the absence of any ruling involving a similar configuration of Trust
and service provider, Mr Justice Bell�s decision rested on the principles
involved in Caparo Industries plc v Dickman BLD 1307012367 inasmuch as
there was insufficient �proximity� between the Trust and the German
contractor hospital to justify the scope of duty of care claimed by the
child�s parents. This meant the Trust had responsibility for managing
contracts with providers, but not overseeing the quality of provision. �We
argued that since the claimants saw themselves as essentially being looked after
by the MoD who had promised to look after them, the duty owed to them by the MoD
and its provider, GST, included ensuring that reasonable care and skill was used
in secondary, hospital treatment in Germany,� Poole says.
For military personnel particularly, bringing a claim in the German
jurisdiction in some instances may be possible. In countries such as Oman, on
the other hand, an established tort of negligence in respect of medical
treatment does not even exist. �In fact, I have a military medical negligence
claimant in just that situation,� he says. �The MoD has told him he must
approach the Omani authorities with his claim.�
Repercussions of the decision for NHS patients referred to off-shore
treatment - under the measures approved by Secretary of State for Health, Alan
Milburn in 2001 - are likely, he predicts. �It remains unclear whether a
patient who has cause to bring a claim for clinical negligence would be able to
do so against the health service of the paying country or only in the
jurisdiction of the treating hospital/healthcare professional.�
Legal aid is also unlikely to be forthcoming to assist civilian
negligence claims arising from treatment in foreign hospitals. �It is my
understanding that the Legal Services Commission will not grant public funding
for claims in this jurisdiction for alleged clinical negligence following
referrals by the NHS abroad. In view of the uncertainty as to whether or not the
patient may sue the Trust referring him, legal expenses insurers and conditional
fee agreement insurers would be most unlikely to underwrite such an action
unless there were settled law. Where legal aid is available abroad, patients
would be able to utilise that scheme if they came within the criteria for it.�
The High Court�s decision in this case could be deemed to be a
policy-making national precedent in the EU for the interstate provision of
medical services flowing from the ECJ�s judgment in B.S.M. Geraets-Smith
and H.T.M. Peerbooms v Stichting Ziekenfonds VGZ and Stichting CZ Groep
Zorgverzekeringen BLD 1307012367 and one which will be followed closely as
there does not appear to be any other European case law addressing this issue,
Poole says. (25/04/03)
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Legislative annotations in other services:-
Caparo Industries plc v Dickman [1990] 1 All ER 568; B.S.M. Geraets-Smith and
H.T.M. Peerbooms v Stichting Ziekenfonds VGZ and Stichting CZ Groep
Zorgverzekeringen (Cases C-157/99, 12 July 2001).