Medical Malpractice, Health and Social Care News Roundup Winter 2021-2022

Medical Malpractice, Health and Social Care News Roundup Winter 2021-2022

A “game-changing” ability to increase imagining diagnostic capacity

Somerset Foundation Trust, together with private company Rutherford Diagnostics Ltd, have opened a first-of-its kind imaging centre which hopes to increase diagnostic capacity including CT, MRI, x-ray, ultrasounds and other imaging services at a time when there are rising backlogs of patients needing diagnostic tests.

Comment: This centre is the first community diagnostic centre run by the independent sector in partnership with the NHS. There is a real need for more diagnostic services and this partnership will hopefully deliver faster services to those in need. There will, however, need to be clear agreements in place in relation to who will be responsible for indemnity arrangements.


Care homes and corporate manslaughter

Aster Healthcare Ltd recently pleaded guilty to a charge of corporate manslaughter following the death of a 93 year old woman after she was scalded in a bath. Aster Healthcare were fined £1.04m to be paid over a period of 3 years. The judge said the company had used “cost cutting” and “fallen short of standards”.

Comment: Whilst there are very few corporate manslaughter convictions involving care homes, this acts as reminder that large organisations can and will be held accountable under the Corporate Manslaughter and Corporate Homicide Act 2007 for management failures that cause death.


CQC fines independent ambulance company for providing unregistered services

An independent ambulance service, Medicar European, has been fined £4,000 for providing services without being registered by the CQC. This is the first time that action has been taken against an independent ambulance provider.

Comment: This should act as a reminder that it is an offence under the Health and Social Care Act 2008 to carry out a regulated activity without being registered with the CQC.


Regulation and patient safety in the non-surgical aesthetic sector

There have been two significant developments in patient safety and regulation of the non-surgical aesthetic sector. Firstly, the long-awaited ban on under-18s receiving botox or fillers has been implemented from 1 October 2021 by the Botulinum Toxin & Cosmetic Fillers (Children) Act 2021. The Act makes it a criminal offence for a person to give botulinum toxin or filler injections for cosmetic purposes to a person under the age of 18. Administration by registered medical practitioners or healthcare professionals acting under their direction can be a defence.

Secondly, changes to regulation of the entire non-surgical aesthetic sector look likely, following publication of the All Party Parliamentary Group on Beauty, Aesthetics and Wellbeing (APPG) report. The APPG noted a “complete lack of a legal framework of standards” and makes 17 recommendations spanning minimum standards, qualification/licensing, prescribing, mandatory pre-screening, extension of the under-18s ban to other invasive procedures and advertising / social media restrictions.


Guy’s and St Thomas’ NHS Foundation Trust to acquire Versius robot

Guy’s and St Thomas’ NHS Foundation Trust has become the first Trust in London to adopt Versius, a surgical robot. The plan is for Versius to help increase the amount of minimal access or keyhole surgery procedures the Trust is able to carry out. Initially, patients in the urology department are the first to be offered surgery with Versius, with plans to widen the use of the technology to include patients having colorectal and general surgeries. The benefits of these robots are said to include faster recovery times, shorter hospital stays, less pain, reduced scarring and a reduced risk of infection. 

Comment: We continue to see more advances in technology and AI tools being tested and trialled. If successful, they could play a significant role in health and social care. As ever, providers of health and social care will need to be clear in their contractual relationships with AI companies in regards to where responsibility lies for any potential liability and have clear indemnity arrangements in place. There will need to be clear guidelines in place if there are personal injury issues when robotic procedures fail or malfunction.


Medical Malpractice Case Law Update

Adelekun v Ho – Landmark decision handed down by the Supreme Court

The Supreme Court recently handed down its judgment in Ho v Adelekun, removing the ability for defendants to recover costs that have been awarded in their favour by off-setting them against costs awarded to the claimant in certain situations. In this case, the claimant was a victim in a road traffic accident and brought a claim against the driver responsible. The claim settled, and she was entitled to damages and costs from the defendant. However, the claimant subsequently lost an argument that went to the Court of Appeal, concerning the assessment of those costs. It was held that she was entitled to costs in the sum of £16,700, however she was ordered to pay the defendant’s costs of the appeal which amounted to £48,600. It was the Claimant’s case that she was protected from paying any of the Defendant’s costs by the qualified one-way costs shifting (“QOCS”) regime, which precluded enforcement of the Defendant’s costs beyond the level of damages and interest payable to her.

Comment: The Supreme Court found that the Defendant could not offset their costs of the Appeal against their liability for the Claimants’ costs. Offset of a costs order in the Defendant’s favour is now only possible against an order for damages in the Claimant’s favour (unless it is a Tomlin order – see Cartwright v Venduct Engineering Ltd [2018] 1 WLR 6137)


About the author

Richard Cupit has worked in the medical sector since 2007, providing insurance and risk management solutions to a portfolio of Medical providers, both in the UK and Internationally. This includes Primary Care, Private Clinics, Secondary Care, Urgent Care, Fertility, Domiciliary Care, Repatriation, Private Hospitals, Telemedicine, Aesthetics, Medicinal Cannabis, Healthcare Staffing Companies, Scanning, Life Sciences, Neuroscience, Dental, Veterinary, Doctors, Surgeons and Practitioners.

If you would like to discuss any of the above, or if you are interested in finding out more about how we can help your business, please contact:

Richard Cupit
M: 07870 548854


The information on this page is provided by Capsticks for Towergate. Capsticks are specialists in defendant medical malpractice law and the above is a Roundup of recent healthcare news and medical malpractice case law decisions. 

This page is produced for the interest of those involved in private health and social care and medical malpractice law. It does not constitute legal advice or seek to direct decision makers in any way.