Wesleyan Financial Services’ Kabir Ahmed interviews Kevin Culliney, Partner at Densura, to discuss the key occurrences that are changing the face of dental indemnity…
From the Paterson Inquiry to cases of vicarious liability and the succinctly put ‘non-delegable duty of care’, there are many aspects of liability that dentists and dental businesses need to be aware of.
I recently caught up with Kevin Culliney to cover these developments, looking at what it means for dentists going forwards and what changes may need to be actioned to ensure you are suitably covered:
What are the big things that are happening that might be casting a spotlight on dental indemnity?
Kevin Culliney (KC): There’s a culmination of different occurrences that’s pushing indemnity into public consciousness currently.
The ones that have hit the headlines most are vicarious liability court cases which went against practice owners, where they were held liable for claims brought against them for the work carried out by their associates.
You may have heard about the latest surrounding the Hughes vs Rattan case and subsequent appeal. There was some good news because the court found that the vicarious liability claim didn't apply, and it was the associate that should be liable - not the people with their name over the practice’s door.
Unfortunately, it's not all good news, because the non-delegable duty of care still remains. You can't always delegate your duty as the practice owner to your dentists. Care should be taken when drafting the Associate contracts and advice sought as to how best avoid any liability automatically being attached to the practice owner.
On the horizon, we also have the fallout from the Paterson Inquiry. Paterson was a rogue surgeon who’s currently serving twenty years for his crimes. Over 1000 women that he harmed made a claim against him. His defence body, the Medical Defence Union, didn't respond to the claim because it was a criminal act.
The Government undertook an inquiry into what happened around Paterson, to make sure that people were properly compensated in future. The Bishop of Norwich produced a report and a series of recommendations. Recommendation number 11 is that indemnity should be reformed so that discretionary indemnity is no longer offered by defence bodies.
Sajid Javid, the Health Secretary, stood up in the House of Commons just before Christmas and did confirm that indemnity would be reformed during the course of 2022. We’re still waiting to see what form that will take.
Let's examine the Paterson Inquiry in more detail. What would the significance be for dentists?
KC: The Dental Defence Union (DDU), Dental Protection (DPL) and Medical and Dental Defence Union of Scotland (MDDUS), have been providing pretty good service to dentists, but they provide it as a discretionary membership.
That means you join them as a member and have the right to request their assistance if you run into liability issues such as patient complaints and claims. There's no compunction on the indemnity provider to respond to these claims, hence the ‘discretionary’ membership. They're not insurance companies.
The problem that the Paterson Inquiry found was that discretionary schemes left a great deal of uncertainty in liability cases.
That being said, it's important to point out that in the case of Paterson, regardless of whether it was a discretionary or insurance claim, it wouldn't be met. Insurance companies don't cover deliberate or criminal acts.
Nevertheless, we expect to see that any provider of indemnity will have to be regulated and will have to provide a policy of insurance as opposed to discretionary membership.
That’s the big change that we see on the horizon later on this year. Insurance will become compulsory, and providers of indemnity will have to be regulated so that they are accountable and so that claimants have a right to appeal.
I think it's important for dentists just to think about what that change might mean. They also need to be a little bit wary of some of the insurance policies that are on offer.
Looking retrospectively at cases of vicarious liability, are principal dentists at risk of legal action for past treatment carried out by associates and is there anything they can do to protect themselves from this?
KC: Yes, practice owners can be responsible for many years and even after they've sold a practice.
There are a number of issues here. One is considering the contract terms when you're selling a practice and what happens to the past liability. Second is making sure that your insurance policy provides vicarious liability cover, but also that it does it on a retroactive basis.
“Occurrence” based insurance covers all treatment carried out during the policy period regardless of when a complaint or claim is made. “Claims made” insurance covers claims made during the policy period.
It is therefore important when arranging occurrence-based cover to ensure that past acts are covered either by a previous occurrence-based policy or defence organisation membership, or by purchasing what is known as “retroactive” cover.
When purchasing claims made cover, dentists need to be sure that past acts are covered and that there is a provision for automatic cover after the policy period if the dentist ceases to practise for any reason (retirement, death, etc.) This is known as “run-off” cover and should be for a sufficient period - usually a minimum of 21 years.
The devil really is in the detail and as ever dentists should seek advice, but at Densura the view is that only occurrence-based cover with appropriate retroactive cover where required is fit for purpose.
Are there any further words of wisdom to make sure dentists are covered adequately in terms of indemnity?
KC: Making sure that you've got the right advice when a claim is made.
The person you want to speak to is another dentist rather than a general lawyer; someone who understands the technicalities and peculiarities of dentistry and who can speak clinician to clinician.
You want to make sure that you're buying into the right team - not the cheapest cover.
Finally, make sure the policy covers all of your work - if you're doing things like facial aesthetics, some policies exclude that.
If you would like support reviewing the indemnity cover you have in place, you can contact dental indemnity specialists at Wesleyan Financial Services by calling 0808 231 9813. To obtain a dental indemnity quote online, you can follow the link wesleyanquote.densura.com/quote/
Please note: This should not be construed as legal advice. We recommend that appropriate legal advice should be taken from a qualified solicitor.
Kabir Ahmed is the Commercial Manager at Wesleyan Financial Services. The commercial team offer specialist insurance advice to dental professionals, including indemnity cover.
You can think of the team as an insurance comparison site with a human touch to help dentists get the best cover available for their personal circumstances.
Kevin Culliney heads up dental indemnity provider, Densura, who’s indemnity product is designed by dentists for dentists.
Densura offers a support team of practising dentists who are also legally qualified, who understand what dentists have to do day-to-day and offer tailored indemnity cover with retroactive liability.