Liability in private healthcare is becoming harder to define, as claims grow larger, more complex and increasingly spread across multiple parties.
The shift is not being driven by a surge in clinical error, but by severity, structure and visibility, a combination that is changing how risk attaches across the sector.
“The biggest drivers are not usually a sudden jump in basic errors, but a combination of higher patient expectations, more complex treatment, and bigger quantum when outcomes are poor,” said Kevin Culliney, CEO of Whetstone, an employee-owned insurance broker.
A relatively small number of cases are now responsible for a disproportionate share of losses, particularly where claims involve lifelong care, loss of earnings and substantial legal costs.
Wider clinical-negligence data points in the same direction, with National Audit Office reporting that very high-value claims accounted for 68% of total costs while representing just 2% of claims by volume.
“The same severity trend matters in private healthcare: a relatively small number of catastrophic injuries, delayed diagnoses, consent failures or inadequate follow-up cases can produce very large losses because they involve lifelong care, loss of earnings and substantial legal costs,” Culliney said.
Claims are becoming more visible, and more easily challenged. Patients are better able to interrogate care through access to records, making inconsistencies in documentation or communication visible earlier.
“Digital tools are changing both the trigger point for complaints, and the evidence trail around them,” Culliney said.
At the same time, expectations are higher and less forgiving, increasing the likelihood that disputes escalate when outcomes fall short.
“When reality does not match expectations, disputes are more likely to crystallise into formal complaints and then claims,” he said.
As a result, claims are shifting from isolated disputes to more structured, document-led challenges, where the strength of records, consent and communication can determine liability. Artificial intelligence is adding a further layer, not by replacing risk, but by expanding where it can arise.
“In practice, that means AI will not remove liability; it may actually widen the range of allegations if clinicians over-rely on it, fail to validate outputs, or use it without transparent patient communication,” Culliney said.
But the most significant pressure comes from how private healthcare is structured.
“Private healthcare often involves a patchwork of separate legal relationships: the hospital, the consultant, the anaesthetist, the clinic company, sometimes a management company, and sometimes third-party diagnostics or remote providers,” Culliney said.
To patients, that pathway may appear seamless. Legally, it is anything but, and that disconnect is driving increasingly complex liability disputes.
In practice, claims are no longer just larger, they are harder to resolve, with multiple defendants, competing indemnity arrangements and uncertainty over who ultimately carries responsibility. That complexity is feeding through into how indemnity is structured and understood.
“The legal distinction is straightforward but important: contractual insurance or indemnity is enforceable under a contract, whereas discretionary indemnity is provided at the provider’s discretion,” Culliney said.
At the same time, providers may be exposed even where clinicians are not employees, particularly where claimants argue responsibility sits with the organisation rather than the individual.
“Many providers understand the concept in theory, but underestimate how easily a claimant may argue that the hospital or clinic should answer for the acts of consultants, associates or other practitioners who are not formal employees,” he said.
The trends point to a shift away from contained, clearly defined liability toward something more diffuse.
“The practical response is not just ‘buy indemnity’; it is to tighten the whole risk chain: better consent, clearer treatment pathways, stronger contemporaneous notes, careful AI governance, and absolute clarity over who is responsible for each stage of care,” Culliney said.
The challenge is no longer just pricing risk, but understanding how it moves across structures, systems and expectations before claims expose it.
