- Published: Thursday, 06 May 2021 19:32
- Written by Chris Tapper
- Hits: 2728
Dental practice principals could in future be considered to be liable for the dental negligence of their associates, following a recent judgement.
The BDA News website called the judgment “A shocking court case.” It said it highlights why some indemnity policies will not keep you safe from claims and damages.
The website revealed that a practice owner in Wales was found to be liable for damages and costs - more than two decades after his retirement.
It was reported that Dr John Croad, a retired dentist and practice owner based in Merthyr Tydfil, was “Horrified to receive a claim from solicitors relating to treatment provided by two self-employed associates working in his practice before he sold it."
The website said “He has had to defend this case out his own pocket and faces further potential costs estimated in the region of £100k to compensate the patient.”
The County Court judge ruled in a preliminary hearing, that the dental practice owner could be held vicariously liable for the negligent treatment of a claimant by an associate dentist who worked within his practice.
The judge also made a judgement that the dental practice owner, owed a non-delegable duty of care to a claimant as a patient of the practice (regardless of whether he personally treated her).
Barrister and former dentist Dr Louisa Sherlock has given her consideration on the recent judgement by His Honour Judge Robert Harrison in hearing in the case of Breakinbury v Croad.
During the hearing, Judge Harrison considered that the relationship between principal and associate was “akin to employment.”
Writing on the No 5 Barristers Chambers website, Dr Sherlock said that while this decision is not binding, the judgement is persuasive.
Her article said “This turns on its head that HMRC considers associates as self-employed.”
The barrister said the implications of this ruling are potentially far-reaching within the dental profession.
She wrote “If an associate is uninsured, or unable to be located, then a Claimant could seek to bring a claim against a principal dentist. Principals, or “Providers”, should therefore ensure that they are covered by their indemnifiers for any potential vicarious liability claim, even after their retirement if they still own a dental practice, and also check that all associates are properly indemnified.”
She continued “Whilst some might consider it unjust that a dental practice principal can be found to be strictly liable for the negligence of an associate when treating a patient, the courts have more recently been willing to extend the doctrine of vicarious liability in the interest of social justice to ensure that innocent victims are able to obtain compensation from solvent defendants.”
Dr Sherlock said that while there was no suggestion that the relevant associate dentist/s were uninsured or unable to be located, the judge still found that the principal owed a non-delegable duty of care and was vicariously liable for the dental negligence of associate dentists when treating a patient of the practice.
The barrister wrote “The judge in Breakingbury also made the point that the practice had an overarching obligation to ensure that the dental services provided by it were safe and met the expected standard set by the Local Health Board, and that associates made clinical decisions on behalf of the practice.”
“This places responsibility squarely on the shoulders of the principal as practice owner, and principals may therefore need to consider how they ensure that such standards are met by their associates and other clinical staff.”
Dr Sherlock wrote that although the relationship between principal and associate was judged to be “akin to employment” in order to establish vicarious liability, it “does not necessarily establish worker status for the purposes of employment law.”
Geoff Jones, Executive Director, Member Protection and Support, Dental Protection, said “The decision from this preliminary hearing is disappointing. The law requires that individual practitioners hold appropriate indemnity to ensure patients have access to compensation in the event of a successful claim. There is no legal requirement for practice owners to also hold indemnity for treatment carried out by other practitioners, the majority of whom work as independent contractors.
“We do not know the Claimant’s motive for bringing the claim against the practice owner rather than the dentists who provided the treatment and against whom negligence was alleged.
“While this case alone does not change the requirement for individual practitioners and associates to have appropriate indemnity arrangements in place, it causes unnecessary worry to all practice owners.
“If a practice owner needed to also hold indemnity for treatment carried out by other clinicians, they would in effect be paying ‘double indemnity’ and these higher costs could have a devastating impact on many practices and increase the cost of dental treatment for patients. This judgment appears to again challenge the relevance of the independent contractor status of most primary care associates and the traditional arrangements that exist between practice owners and their associates.”
John Makin, head of the DDU, said “We note the findings of the county court judgment where a practice owner was held vicariously liable for negligent treatment by an associate working at the practice. We share members’ concerns about the judgment but wish to reassure them about the implications.”
“Firstly, while decisions of the lower courts can be persuasive, they are not binding and cases will turn on their individual facts.”
“Over the past few years we have seen an increasing number of claims being made against practice owners about treatment carried out by associates. Where the practice principal facing such a claim is a member of ours we are generally able to work with the indemnity provider of the treating associate to manage the claim to its conclusion. This case does, however, highlight the importance of practice owners ensuring their associates are appropriately indemnified and, if they leave the practice, keeping their contact details up to date.”
“As a not-for-profit mutual organisation, owned and run by dentists and doctors, we are constantly looking to ensure our products and services meet members’ needs and keep pace with current developments.”
Vicarious LiabilityWhat this article does not cover is why this happened, and essentially this came about because there were virtually no notes available to review (along with other issues). In the absence of clinical records the patient went after the owner. This has been coming for some time. In the last 20 years in working with corporate groups I have seen many attempts made to establish this liability. My advice to practice owners is to have their practice cover with the same indemnity provider as the associate. Eight years ago I created Densura (and "no" I was not paid by them to do so) when I was at Oasis for this very reason. That way regardless of who gets the claim, you know that it will be handled.
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