Case comments

This case concerned C seeking declaration as to the scope of the obligations of the contract between the parties (not including the consultants).

C underwent private surgery at D private hospital.

The dispute between the parties was whether D was contractually liable for the acts and omissions of the consultants. C’s position was that the services for which D was responsible under the contract included all inpatient surgical and anaesthetic services. 

D denied that its contractual liabilities extend to the provision of services by the consultants. D relied on the contract term: “All consultants are self-employed and provide their services direct to the patient.”

The court found that C was not entitled to the declaration sought.  The contract did not cover consultant services in respect of the operation. C had a remedy in negligence.

The case accords with the usual practice that consultants are independent practitioners who provide their services directly to the patient; there may be a contract between the consultant and the patient so that the remedy against the consultant is in contract and tort. 

Author: Doctor Anthony Barton

Dr Anthony Barton qualified as a doctor in 1981 and switched to law in 1992. Anthony also co-edits the leading text “Clinical Negligence” with the sixth edition having recently been published. He is also a former assistant coroner and joint owner of Medical Negligence Team Law.