Medical malpractice

Written by Gabrielle Dyer Patrick

Key developments in 2025

The Anaesthesia and Physician Associates Order 2024 has now come into force, moving Anaesthesia Associates (AAs) and Physician Associates (PAs) from unregulated practice to full statutory regulation under the GMC. This shift aligns their oversight with that of doctors, introducing nationally defined standards for education, registration and fitness to practise; strengthening both patient safety and professional accountability.

With full GMC regulation, AAs and PAs now carry individual liability for clinical errors rather than liability resting solely with supervising doctors. Medical Malpractice insurers should therefore reassess exposure and pricing, as clearer accountability both expands the market for individual cover and changes how risk will be allocated in claims.

The case of Bartolomucci v Circle Health Group Limited [2025] concerned whether a private hospital could be contractually liable for the medical services of self-employed consultants working under practising privileges in connection with private surgery. The decision confirmed the previously held position that private hospitals offering "all-inclusive" treatment packages do not automatically assume liability for negligence in these circumstances. The court emphasised that liability remains with the consultant unless the hospital's contract expressly extends responsibility to them.

The terms and conditions that a patient signs when undergoing treatment in the private sector therefore remain crucial, as unclear wording could unintentionally shift liability on to healthcare entities and their insurers. Insurers indemnifying both healthcare entities and individual practitioners will therefore wish to be satisfied that appropriate contracts for treatment are in place and ensure adequate limits to allow for the possibility of high-value malpractice claims.

What to look out for in 2026

Political and financial scrutiny of clinical negligence costs is expected to intensify in 2026, and despite missed deadlines, fixed recoverable costs (FRCs) remain the most likely direction of reform for low-value claims.

The government had aimed to introduce FRCs for cases up to £25,000 in April 2024, arguing that claimant legal costs are disproportionately high and often more than twice the damages awarded. In 2023-2024 alone, claimant firms received approximately £536 million in costs; nearly a fifth of all damages paid. Such figures continue to fuel public concern about how much money is ending up in the pockets of patient lawyers rather than reaching injured patients.

The delay in implementation of FRCs is most likely due to the significant stakeholder opposition that has been voiced to date. The claimant sector argues that a fixed-costs system could undermine access to justice, particularly where low-value claims involve complex medical evidence or affect vulnerable patients.

If implemented, FRCs will cap the legal fees that can be claimed in lower-value medical malpractice cases, so costs should become more predictable. However, behavioural changes in claimant solicitors should be anticipated. If profitability on these cases reduces, some are likely to respond by suggesting that claims are worth more than they first appear. Insurers should therefore be alert to attempts to inflate claims to move them outside fixed bands.

There is also growing debate about how future care is valued, including whether injured patients should recover the costs of funding future private treatment and care while still being able to choose to rely on publicly funded support having received their damages. While any change to care/treatment-cost rules is likely to move more slowly than the FRC reforms, it signals that scrutiny of overall clinical negligence spending continues to expand, and public interest in the cost of medical malpractice is likely to continue.