Where are we with apportionment between Healthcare Defendants in med-mal claims?

What was the case about?

Healey was a clinical negligence claim brought by Alison Healey on behalf of the estate of her husband, Mr Simon Healey, and his dependents. Mr Healey died following a hemicolectomy procedure to treat cancer at Ramsay Berkshire Independent Hospital in August 2017, performed by Mr McGrath, Consultant General Surgeon. Sadly, Mr Healey experienced a post-operative anastomotic leak and died from sepsis.

Mrs Healey brought a claim against both Mr McGrath (D1) and Ramsay Health Care (D2), who were vicariously liable for their employed nursing and auxiliary staff at the hospital.

Both Defendants admitted breach of duty in the primary claim. D1 was negligent in the provision of post-operative care, whereas D2 was negligent as a result of failures by the nursing staff in the post-operative period, specifically a failure to ask for more frequent reviews and to carry out more frequent observations. D2 ultimately settled the Claimant's claim for £1.2 million, plus costs, on a unilateral basis.

Upon D2 having previously served a contribution notice on D1 in December 2020 under Part 20 of the CPR, the trial of the contribution issues was heard in April 2024. There were two issues to be determined by the Court: (1) apportionment as between the Defendants; and (2) costs (specifically the Claimant's costs, and whether D2 was entitled to recover their costs of the Part 7 / 'main' action and their costs of the Part 20 claim).

Apportionment

When considering what apportionment was "just and equitable" under the Civil Liability (Contribution) Act 1978, the Judge reaffirmed that this issue was to be determined with reference to the long-established principles of: (1) fault (or blameworthiness); and (2) causative potency.

In apportioning 75% of the claim to D1, the Court found the following:

1. The primary fault lay with Mr McGrath. He was "the consultant surgeon in charge of the treatment…it was Mr McGrath's responsibility to devise the treatment plan…The failure of Mr McGrath to be sufficiently attentive to the signs of Mr Healey's failure to recover from the surgery and his failure to be sufficiently alert to the risk of an anastomosis leak were the principal failures."
2. The crucial delay was predominantly attributable to the failures of Mr McGrath, whereas the causative contribution of the nursing failures was "limited by comparison."

Costs

Two of the issues around D2's claim for costs were straightforward and uncontroversial. D1 having been found to be responsible for 75% of the damage, it followed that he was also responsible for 75% of the Claimant's costs. Further, as D2's Part 20 claim for contribution had been successful they were entitled to recover their costs of the Part 20 claim; the Court saw no reason not to follow the general rule that costs follow the event.

The issue of whether D2 was entitled to recover any of their costs of dealing with the main action, i.e. the costs incurred by D2 in defending the Claimant's claim, was less straightforward, however. D1 having been found to have an apportionment of 75% of the Claimant's claim, D2 sought to recover the same proportion (75%) of their main action costs from D1. The Court held that there is discretion under section 51 of the Senior Courts Act 1981 (and indeed under Part 44 of the CPR) to order one Defendant to pay another's costs of defending the main action. In concluding that D1 should pay one third of D2's main action costs, the Judge made the following points:

• The role of D2's nursing staff was subordinate to D1, who was the surgeon in charge of the treatment and devised the treatment plan.
• D1's failures were the substantial contributory cause of Mr Healey's death.
• D1's conduct throughout the proceedings was a relevant factor. His conduct throughout the action was "unsatisfactory, unrealistic and uncooperative." Significantly, D1 even failed to attend the trial of the contribution issues.
• Whilst on one view D2 was 100% responsible for their own negligence, it would be unfair in these circumstances, i.e. where D1 was more responsible for the damage and there were considerable conduct issues, for D2 to bear all of their own main action costs. Therefore it was just for D1 to contribute to D2's main action costs in principle.
• On the analysis of what was a just proportion for D1 to pay, the fact that D2 would also be responsible for D1's Part 20 costs was also a factor that should be weighed in the balance.

Discussion

Whilst Healey is as timely reminder of how the Courts approach the apportionment of damage as between Defendants, it is the issue of recoverability of the 'main' action costs which is likely to be of most interest to Defendants and their indemnifiers.

Whilst each case will need to be considered on its own facts, where one Defendant has a higher proportion of a claim it appears from Healey that that Defendant may also, in principle, be ordered to pay a proportion of their Co-Defendant's main action costs, particularly where conduct issues are in play.

However, it would appear that the proportion of main action costs to be paid will not automatically correspond to the proportion of the Claimant's claim for which the particular Defendant is responsible, even in circumstances where that Defendant's conduct has been particularly egregious (as it appears D1's conduct was in Healey).

This Judgment should, nevertheless, be welcomed as an example of the Courts seeking to ensure that justice is done as between Defendants, and will be seen as significant for insurers/other indemnifiers involved in multi-Defendant cases looking to reduce their indemnity spend.