Published: 00:00, 15 July 2004
PATIENTS of disgraced Kent doctor Clifford Ayling have won a landmark ruling in their fight for compensation from the NHS.
In a decision which broke new legal ground, Mr Justice Gray refused to strike out the damages claims of 31 of the ex-GP's former women patients against the Kent and Medway Strategic Health Authority.
He agreed the health authority had put forward "powerful" arguments that a a ruling in the women's favour threatened damage to the health service and would encourage unnecessary "whistle-blowing".
But he ruled the women should be allowed to pursue their claims that the health authority was "vicariously liable" for Dr Ayling's misdeeds.
Dr Ayling practised in Folkestone and many other parts of Kent during a long career.
Thirteen of the women have already won damages against the former GP after suing him directly - but, as Dr Ayling is bankrupt, their awards may well turn out to be worthless, said the judge.
It was that which prompted the women's "novel" claims against the health authority which would be in a position to pay hundreds of thousands of pounds in compensation claimed by the women.
Allowing the women's case to proceed to a full trial, the judge rejected the authority's plea that it was "manifestly unfair, unjust and unreasonable" for the women to sue them over Dr Ayling's behaviour.
Philip Havers QC, for the authority, argued that, if the women win their case, health workers will be encouraged, "out of an abundance of caution", to "whistle blow" on colleagues even if there is only the slightest hint of misconduct.
Mr Justice Gray said Mr Havers had put forward "powerful points" in support of the health authority's bid to strike out the women's damages claims at this preliminary stage.
But he ruled it was arguable that the health authority owed the women "a common law duty of care" and could be held "vicariously liable" for their suffering at Dr Ayling's hands.
He said he had to be "cautious" before dismissing the women's claims without a full hearing, particularly as "the climate of opinion in regard to whistle-blowers has changed in recent years" and in a rapidly developing area of the law.
It is the women's case that they were assaulted and mistreated by Dr Ayling between 1993 and 2000. They say that, by 1993, "there existed a wealth of information...about the kind of threat which Dr Ayling posed for women under his treatment".
And their lawyers argue that threat was known about by "some at least" of the health workers employed by the health authority - but that little or nothing was done to protect patients.
Dr Ayling was struck off after being found guilty at Maidstone Crown Court in December 2000 of 13 counts of indecent assault. He was jailed for four years, but has since been released.
No date has been set for the full hearing of the women's damages claims against the health authority.