Neil Rowe, senior in-house counsel at THEMIS Clinical Defence, comments on what the High Court’s decision in Bartolomucci v Circle Health means for private hospitals, healthcare practitioners, insurers and those drafting consultant contracts.
Brief overview
The High Court’s decision in Bartolomucci v Circle Health Group Ltd [2025] EWHC 529 (KB) reported on 7/3/25, provides clear judicial confirmation that a private hospital offering an all-in treatment package is not contractually liable for the acts of independent consultants operating under practising privileges. This judgment will be of particular interest to healthcare providers, brokers, indemnity insurers, and legal professionals working in the private healthcare sector.
Background
Mr. James Bartolomucci underwent a private hip resurfacing operation in 2015 at BMI The Edgbaston Hospital, which was owned and operated by BMI Healthcare Ltd (now Circle Health Group Ltd, hereafter “Circle”). As a result of complications during the procedure, Mr. Bartolomucci unfortunately suffered a catastrophic brain injury. The case raised important legal questions about whether the hospital could be held contractually liable for the actions of the treating consultants involved.
The facts
The surgery was booked and paid for as part of a single all-in package costing £14,220. The package was marketed as covering all elements of care related to the procedure, including pre-operative, operative, and post-operative services.
The orthopaedic surgeon and anaesthetist who carried out the operation, however, were not employees or agents of the hospital. Instead, as is common in this setting, they were independent practitioners granted practising privileges, operating their own private medical practices from the hospital’s facilities.
Mr. Bartolomucci, represented by a litigation friend, brought Part 7 proceedings, alleging clinical negligence during the procedure, and seeking damages in tort for his brain injury.
The claim made
This case was unusual in that the claim that came before the court focused exclusively on contractual liability. The consultant anaesthetist’s medical defence organisation (MDO) would not indemnify him. Due to his brain injury Mr Bartolomucci has significant care needs and so the Claimant was concerned that any award of damages made could not be paid.
The Claimant therefore issued Part 8 proceedings and sought a declaration that Circle had contractually undertaken responsibility for the acts and omissions of the consultants who treated him. Part 8 proceedings are determined by the court interpreting the (limited) contractual documents available and the Claimant hoped that judgment in his favour could then be applied in the Part 7 proceedings for damages so that if liability was established against the consultants and damages awarded, Circle (or its indemnity insurers) would pay.
Circle rebutted the claim and argued that it was not responsible for the independent consultants who held practising privileges and only responsible for the nursing staff and other items specified.
The contractual documents
Central to the case were the written terms and conditions provided as part of the treatment package. The covering letter enclosing the terms and conditions referred to “details of our self-pay fixed price package for your surgery”. The Claimant relied heavily on the words “your surgery”. Circle relied on the contract, where Clauses 18 to 20 were particularly relevant. These clauses:
- Stated that consultants were self-employed;
- Specified that consultants provided services direct to the patient;
- Indicated that while the hospital collected fees from the patient on behalf of the consultant, the consultants might separately invoice;
These clauses were standard for many private healthcare settings and mirrored common industry practice.
The judgment
The High Court found in favour of Circle.
The court held that the contractual documents did not support the claimant’s argument that Circle had undertaken to supply the surgical and anaesthetic services directly. Despite the use of all-in language in marketing and documentation, the contract made it clear that:
- The consultants were acting in their own capacity;
- The hospital’s role was limited to providing facilities, nursing support, and administrative services;
- The responsibility for the delivery of clinical treatment lay with the consultants themselves.
On this basis, the court refused to make the declaration sought by the claimant. Circle was not contractually responsible for the treatment provided by the consultants.
Ancillary issues
The claimant did not ask the court to consider issues in tort such as vicarious liability or non- delegable duty. It remains to be seen if a claimant in another case chooses to pursue this line of argument in a similar scenario. For now, fortunately there has been no expansion of the application of Woodland v Essex.
While the court’s judgment focussed on what a reasonable reader would understand from the documents it also commented that its view was consistent with commercial common sense. Documents created after the contract were not construed – in particular the practising privileges agreements between Circle and the consultants which had never been seen by Mr Bartolomucci. Finally, while there was never any written contract between Mr Bartolomucci and the consultants the court inferred one through the consent process.
The sting in the tail for the Claimant was that Circle are entitled to recover their costs of the Part 8 claim as this was not a qualified one-way cost shifting (QOCS) personal injury case.
Impact of the decision
The judgment provides strong reassurance for private hospitals that operate using the practising privileges model. It confirms that:
- A private hospital is not contractually liable for the acts of consultants who are clearly identified as independent practitioners;
- The courts will give effect to express contractual provisions, even where a patient might assume they are receiving treatment “from the hospital” as a single entity;
- The prevailing model of consultant independence and separate indemnity arrangements remains legally robust.
Had the claim succeeded, it could have exposed private hospitals to significantly increased risk and liability exposure, with knock-on effects for indemnity markets and healthcare costs.
Practical tips
For those involved in drafting or reviewing consultant contracts and patient-facing documentation in private healthcare, the following best practices are recommended:
- Be clear on consultant status
Ensure all contracts, marketing materials, and pre-treatment communications clearly state that consultants are independent practitioners, not employees or agents of the hospital. - Clarify what the package includes
Where all-in or bundled pricing is offered, define exactly what is included and who is responsible for each element of care. - Review standard terms regularly
Periodically review and update template contracts to ensure they reflect evolving legal standards and case law. - Avoid ambiguity in patient communications
Patient information leaflets and pre-admission documentation should reinforce the contractual distinction between the hospital and the treating consultants. - Ensure consultant indemnity cover
Require all consultants to maintain up-to-date professional indemnity insurance as a condition of practising privileges, and carry out regular compliance checks.
Conclusion
Bartolomucci v Circle Health Group Ltd confirms that private hospitals are not contractually responsible for the clinical treatment delivered by independent consultants operating under practising privileges – even where care is purchased as part of an all-in package. This decision will be welcomed across the healthcare sector as preserving the clarity and viability of long-established private practice models. At the same time, it will provide food for thought for those contemplating alternative indemnity structures for consultants operating within private providers.
