On 12 May 2015 C underwent a hip resurfacing procedure (“the Surgery”) at what was then known as BMI The Edgbaston Hospital in Birmingham (“the Hospital”). The Surgery was performed by a consultant orthopaedic surgeon hypotensive epidural anaesthesia was administered by a consultant anaesthetist (together “the Consultants”). [1]
As a result of complications during the Surgery the C suffered a catastrophic brain injury and has very significant and continuing care needs. Although not for determination in the current proceedings, C alleges that the surgery and/or the anaesthesia were not carried out with reasonable care and skill and he intends to seek damages as a result. D accepts that, for the purposes of the current proceedings for declaratory relief only, it should be assumed that the one or both of the Consultants were negligent. [2]
The Surgery was performed pursuant to a contract (“the Contract”) contained in contractual documents which are dated 23 April 2015. The parties to the Contract were C and BMI Healthcare Limited [name changed to D in 2020]. [3]
C seeks a declaration as to the scope of the obligations undertaken by BMI under the Contract. [4]
the dispute between the parties is whether D is contractually liable for the acts and omissions of the Consultants. C’s position is that the services for which D is responsible under the Contract included all inpatient surgical and anaesthetic services provided by the Consultants during and in relation to the Surgery. [5]
D accepts that it is responsible for a range of services provided to C in association with the Surgery, including nursing services, along with the provision of food, accommodation and surgical facilities. D denies that its contractual liabilities extend to the provision of services by the Consultants. On D’s case the Consultants provided their services direct to C and independently of BMI and thus C’s remedy in respect of any negligence by the Consultants is through action against the Consultants themselves. [6]
[Clause 18: All consultants are self-employed and provide their services direct to the patient. [22]]
C is not entitled to the declarations sought [138]
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