Exclusive GP partners facing ‘hundreds of thousands of pounds’ in legal costs have issued a warning to practices about the risks of ‘vicarious liability’.
Dr Matt Prendergast, a GP at the University Health Service Southampton, told Pulse that he and his partners are facing a claim in excess of £10m for the actions of their salaried GP, under vicarious liability.
In 2018, the salaried GP completed a medical form for an extreme sporting activity during a consultation with a student, but failed to include some pre-existing medical issues.
According to Dr Prendergast, the GMC investigated this doctor and issued a warning instead of sending it to tribunal, concluding that the doctor had filled in the form incorrectly.
During the sporting activity, the student was seriously injured, and started a legal claim against the salaried GP in 2021.
Since this medical form was private work – reimbursed at a cost of £30 – the salaried GP is covered by the Medical Defence Union (MDU), rather than the state-backed clinical negligence indemnity scheme.
Dr Prendergast told Pulse that in 2023 the patient’s lawyers extended the claim to include the practice partners, as employers, since the MDU refused to guarantee it can cover the total potential damages of over £10m.
However, he said this leaves the partners open to risk since their own indemnifier, the Medical Protection Society (MPS), does not cover ‘vicarious liability’.
The MPS told Pulse that this ‘unfortunate situation’ has arisen because the ‘indemnifier assisting the GP at the heart of this matter refuses to confirm whether they will provide indemnity to cover the full compensation due, should the GP be found liable’.
It also said that claims for ‘vicarious liability’ for non-NHS contracted work are ‘very rare’ and as such there is insufficient ‘demand’ for such a product.
But the MDU told Pulse that their indemnity cover is ‘not capped or limited’ and that the actions of the patient’s lawyers are ‘outside [their] control’.
Dr Prendergast said that because partners have ‘unlimited liability’, they can be held responsible for the actions of their staff on a ‘vicarious’ basis, and could ‘lose everything’.
‘If the case gets settled or if in court they find in favour of the claimant, then even if the full claim is settled, then we will be liable for the costs associated in the case against us, which could be hundreds of thousands, and [the MPS] won’t cover that.’
He said he wants to warn other practices against completing medicals for extreme activities, because ‘for £30, this has caused unbelievable heartache’, and they would be ‘made bankrupt’ if the full value of the claim was realised.
Dr Prendergast added: ‘I’ve had partners thinking of divorcing their other half, so they can protect their assets. I’ve had partners considering worse – really terrible things.
‘I’ve dropped my sessions. We’ve merged with another practice to protect ourselves and the service. I can’t quite get over what an effect this has had because of unlimited liability.’
None of the three main medical defence organisations in the UK offer cover specifically for vicarious liability for GP partners, but Dr Prendergast pointed to a product for dentists under the MPS which was introduced as a result of a legal case in 2022.
The MDOs are ‘just pointing fingers at each other saying “it’s not our responsibility”’, he added.
Geoff Jones, executive director of member cases and claims at the MPS, said: ‘This unfortunate situation has come about because the indemnifier assisting the GP at the heart of this matter, refuse to confirm whether they will provide indemnity to cover the full compensation due, should the GP be found liable.
‘This has resulted in the claimant pursuing the current GP partners under vicarious liability, meaning they may be liable for any shortfall in damages, even though they were not involved with the patient’s care.’
He said that there has ‘not been demand’ for a vicarious liability product from MPS, but that they keep their services ‘under review’.
Mr Jones continued: ‘We appreciate the stress caused by this situation and will continue to do everything possible to encourage the main GP’s indemnifier to confirm they will assist fully, and extricate the GP partners from this case.’
MDU director of professional services Dr Caroline Fryar said that the organisation – which is supporting the salaried GP in this case – has a ‘long history’ of ‘settling claims’ where appropriate.
She told Pulse: ‘Given the rising costs of clinical negligence, it is not uncommon for the MDU to pay claims in excess of £10M and MDU indemnity is not capped or limited.
‘The MDU member is being fully supported. The claimant solicitors have decided to include the other GPs at the practice in the claim on a vicarious basis.
‘The way in which claimant lawyers choose to act is outside our control. We have repeatedly advised it is unnecessary to involve the other GPs in the claim; however, it is for the defence organisation of which those GPs are members to defend any such allegations – we can only extend assistance to our member.’
The MDDUS, which is not involved in this specific case, said that it would use ‘positive discretion’ to support members if vicarious liability may be involved.
A spokesperson said: ‘MDDUS expects individual GPs to hold their own indemnity, and we would look at every case against a member, including when these are GP Partners, and whether it involves vicarious liability or not. Our aim is always to look to use positive discretion to support our members.’
Last year, the MPS warned GPs to be careful and ‘remain objective’ when declaring patients fit to participate in extreme events.
The MDO advised partners to ensure that protection covers all GPs in the practice, in case ‘a claim against a GP without adequate professional protection is deflected to the practice under vicarious liability’.
I’m no expert but it seems to me the fundamental problem here is the unlimited liability of the partnership model, which was created in less litigious times.
Someone may know, but I’ve never understood why the partnership model can’t have a limited liability (LLP) basis…
Is it possible to hear more details as to why the DR (a) is responsible for an injury arising from an extreme sport entered into voluntarily by an adult. one assume if was secondary to the undisclosed former illness.
On a societal level though what are we to do for those needing a medical (as opposed to a pointless piece of paper with a stamp on it) be it for a diving course or run 5 k in France. The population seems to ‘need’ these and they are not an NHS service. But is there a middle ground assuming a competent relevent history and examination to say one can find no reason not to undertake the activity rather than they are fit to? There is no such thing as risk free activity and adults accept this risk not blame others for they own activity.
It seems in reality most of these bits of paper are to ‘cover’ the organisers . I am aware of some providers in the private sector issuing certificates after an on line application (for things like French marathons) which will become much commoner if GPs opt out and as a result there will people coming to harm from ‘missed’ but unknown pathology
Yes I don’t understand that either. I am locum at a practice owned by a ltd company of GPs who have taken over several of the practices; what is the block? why are all partnerships not changing to this? Is it less favourable re tax? anyone?
Saying one “can find no reason not to undertake the activity rather than they are fit to” amounts to the same thing.
The author will be held liable / accused of error for the ‘not finding’ part, since they signed the form. Were this not the case, no form would be necessary. Its all so the provider of the discretionary activity can try to pass off the liability as and when someone eventually, inevitably meets with a problem participating in an activity, the consent for which a GP has had no part in, and has no duty to be party to.
Just don’t do them. Not contractual. No gain (paltry, not worth the time let alone the unlimited pain)
Is it worth filling in these forms for patients, particularly as the concept of personal responsibility has seemingly gone out of the window?
It is possible but I think the main perceived risk is that a Practice’s GMS Contract is with the Partnership – if that Partnership is replaced by a LLP, the contract is not necessarily simply given to the new company. It could be opened for tenders and could be awarded to a different provider altogether. You need the ICB’s agreement first and they want certain assurances…
@George
Interesting, that hadn’t occurred to me.
Correct me if I’m wrong, but wouldn’t the LLP, as the contracting party, run into the same problem regarding a claim for vicarious liability, for the salaried GP’s action? Presumably the salaried GP’s employment contract is with the partnership or LLP, and not with any individual partner/principal.
@sp the bird
The difference is the debt would lie with the partnership only – so they could lose their business and business assets; but not their individual assets like their homes and pensions or be declared bankrupt as an individual
Refuse GANFYD. Not a skydiving expert, what happened to personal responsibility?
@bong, of course, thanks. Brain freeze. I was instead pondering the legal grounds for bringing a vicarious liability claim.
I do not wish to denigrate the seriousness of the situation for the partners involved and I wish them luck in getting this resolved. That said look at the imbalance here. A £30 payment for completing this form. The lawyers now involved will be charging £300 an hour. Ludicrous.
Another reason we dont and have never done these silly forms. Not contractual. Many private doctors out there do them for 10x the fee. Just don’t do it.
The exact details and outcome of this case are not yet known. It must be a very rare and unusual case.
rare/unusual it may be. the value of the article i think is that for GPs who decline noncontractual GANFYD liability-taking, such a situation is avoidable
Do any practices still do these? Even privately?
They are not remotely worth the risk. We just tell them to find a private sports medicine consultant to sign the form for them.