The scope of private healthcare providers’ contractual liability in the context of medical malpractice

Introduction

Is a private healthcare provider contractually liable if a patient is injured by the negligence of an independent consultant? The High Court’s decision in Bartolomucci -v- Circle Health Group Limited [2025] EWHC 529 (KB) provides crucial clarification in relation to this question. 

The Court held that, despite the fixed-price nature of the agreement, the hospital was not contractually responsible for the services provided by independent consultants. This case is of particular importance for private healthcare providers operating under “all-inclusive” treatment models, where patients often interact with both hospital-employed staff and self-employed consultants. 

The judgment clarifies the extent to which contractual documents must differentiate between responsibilities held by the hospital and those held by independent medical practitioners.  

This article explores the practical implications.

Summary of the facts

The Claimant underwent hip resurfacing surgery in 2015 at what was then known as BMI The Edgbaston Hospital (“the hospital”). The surgery was performed by a consultant orthopaedic surgeon and consultant anaesthetist, (“the consultants”). 

The parties to the contractual agreement were the Claimant and BMI Healthcare Limited, which was later acquired by Circle Health Group Limited in 2020 (“the Defendant”).

During the operation, the Claimant suffered from a catastrophic brain injury due to prolonged hypotension under anaesthesia. As an alternative route to pursuing a claim for tortious liability, the Claimant filed a Part 8 claim seeking a declaration on the scope of the Defendant’s contractual obligations.

The contractual documents consisted of a covering letter with the heading ‘fixed price package’, a quotation for the surgery and Self-Pay Terms and Conditions (“T&Cs”). 

Key legal issues

The Court was asked to identify the intention of the parties by considering what a reasonable person, having all the background knowledge available at the time, would have understood the terms of the contract to mean. 

The Claimant averred that the “all-inclusive” nature of the treatment package implied that the hospital assumed responsibility for all aspects of the surgical procedure, including the services provided by the consultants and that this was a reasonable expectation. The Claimant also contended that no direct contract existed between him and the two consultants.

The Defendant countered this by relying on express provisions within the T&Cs, most notably:

• Clause 18, which specified that consultants are self-employed and provide services directly to patients;

• Clause 20, which confirmed that consultation fees are invoiced separately by the consultants.

The Defendant maintained that its responsibilities were limited to providing facilities, nursing care, and ancillary services and not the provision of consultant-led medical treatment.  

Court’s analysis and decision

Malcom Sheehan KC, sitting as a Deputy High Court Judge, concluded that a reasonable person, informed by the contractual documents would understand that the hospital’s obligations did not extend to the provision of surgical services by the consultants. It was noted that this made ‘commercial common sense’ and this approach reflected the natural and ordinary meaning of the words used.

It was held that the contractual documentation made it clear that the hospital was not providing the consultants’ services to the patient, despite the all-inclusive treatment package. 

Key points to note 

The Court highlighted that the specific contractual evidence of each individual case will need to be carefully assessed. However, it is key to note the following:

• Clarity is key: Clearly distinguish between hospital and consultant responsibilities to assist patients in appreciating the nature of the contractual arrangement. 

• Use explicit terms: Clauses like 18 and 20 (consultants are self-employed, consultations are separately billed) were crucial in helping to shield the hospital from liability.

• Avoid reliance on internal arrangements: The existence of practising privileges was deemed irrelevant in interpreting the contractual relationship in existence as patients are not privy to such arrangements.

• All-inclusive packages: These remain perfectly acceptable, provided the contractual documents clearly outline who is responsible for what. These types of packages do not in itself create a presumption that the hospital is contracting with a patient, they are viewed as mechanism of convenience rather than indicators of contractual responsibility.