Is your dental practice at risk? What you need to know about vicarious liability

By Magdelena Harding, Dental Specialist Financial Adviser at Wesleyan Financial Services.

In dental practices today, it’s rare for patients to receive care from just one named dentist. Instead, treatment is often delivered by a team of professionals, including associates, hygienists, therapists and nurses.

While this collaborative approach can improve efficiency, it also means that patients are more likely to take legal action against the practice as a whole if something goes wrong – rather than the individual clinician involved.

This shift brings the concept of vicarious liability into sharp focus. 

What is vicarious liability?

Put simply, vicarious liability means being held responsible for the actions of another person – even if you weren’t directly involved.

In a dental setting, this usually means that a practice owner or principal dentist can become liable for treatment carried out by another team member, such as an associate or hygienist.

Even if a clinician is self-employed, liability can still apply. A court may find a practice owner or principal dentist liable if:

• The treatment was delivered through the practice
• The patient believed the practice was overseeing their care
• The patient didn’t know the clinician was self-employed

Given these risks, it’s important to take proactive steps to protect yourself, including regularly reviewing the contracts of those working in your practice.

Breakingbury v Croad (2021)

In the case of Breakingbury v Croad, a patient sued her dental practice after receiving negligent treatment over several years. The practice owner argued he wasn’t liable because the care had been provided by self-employed associates.

The court asked the following questions:

1. Did the owner owe a non-delegable duty of care?
2. Was he vicariously liable for the actions of the associates?
3. Was the claim within the legal limitation period?

The court ruled that the practice owed a non-delegable duty of care, meaning responsibility couldn’t be passed to someone else.

It also found the practice owner vicariously liable, noting that the working arrangements of the associates were “akin to employment”.

Finally, the claim was deemed within the limitation period (the legal time limit for bringing a claim) because the patient only became aware of the negligence in 2018.

This case set a precedent: practice owners can be held accountable for the actions of their associates, even if those associates are technically self-employed.

How to protect your practice

To reduce the risk of vicarious liability claims, there are some practical steps you can take. These include:

• Ø Reviewing associate contracts

Ensure contracts clearly define associates working in your practice as self-employed and responsible for their own clinical decisions. This includes clauses requiring them to maintain appropriate indemnity cover in line with GDC standards.

Another important element to pay attention to is the locum clause. This clause should state that if an associate is unable to work, they must arrange and pay for a locum. Supplying a locum yourself, even with good intentions, can blur the lines of employment and increase liability risk.

Equally important is ensuring these contractual terms are implemented and enforced in practice. It isn’t enough for these clauses to exist on paper – they should also be consistently applied. For example, if a locum clause is included, associates should be required to follow it, and practice owners should avoid making informal exceptions.

Failing to do so can weaken your position if a legal dispute arises and undermine the protections the contract is designed to provide.

• Ø Verifying indemnity cover

All clinicians in your practice must hold adequate and continuous indemnity insurance. It’s important to request proof annually and keep records up to date.

• Ø Considering incorporation

Operating as a limited company can offer personal asset protection. While it doesn’t eliminate liability completely, it can add an extra layer of security. You might also want to explore entity-level liability cover, which protects the business itself (such as property and finances).

• Ø Checking your own indemnity

Whether you’re covered by an insurance policy or a Dental Defence Organisation (DDO), regularly reviewing your indemnity arrangements is essential.

An insurance policy clearly outlines the terms of claims settlement, providing certainty about what’s covered. In contrast, a DDO typically offers discretionary cover. This can work well, but means they ultimately decide whether, and to what extent, to assist with claim settlements.

Key questions to ask providers

If you’re unsure which type of indemnity cover is right for you, here are some questions you can ask providers to ensure comprehensive protection:

• Ø What scenarios are covered under my policy?
• Ø How will you defend my reputation against false claims?
• Ø Does my cover include additional treatments like Botox or maxillofacial surgeries?
• Ø How do past claims affect my current cover?
• Ø What happens if I disagree with a settlement?
• Ø Am I protected after retirement?
• Ø If I buy a practice, who is liable for historic claims?

By addressing these questions, you can close gaps in your protection and ensure your practice – and your career – are legally secure.

Protect yourself from unnecessary risk

Without the right indemnity insurance, your personal and business assets could be left vulnerable. Taking the time to review your cover can make all the difference should a claim arise in the future.

At Wesleyan Financial Services, our specialists can help you explore your options and arrange a policy tailored to your specific needs – giving you reassurance and peace of mind that you’re properly protected.

Visit wesleyan.co.uk/dental or call 0808 149 9416.

Please note: Charges may apply. You will not be charged until you have agreed to the services you require and the associated costs. Learn more at www.wesleyan.co.uk/charges.

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About Magdelena

Magdelena is a Dental Specialist Financial Adviser at Wesleyan Financial Services, supporting dentists, their families and their practices with financial planning to secure their financial future.

Wesleyan Financial Services Ltd (Registered in England and Wales No. 1651212) is authorised and regulated by the Financial Conduct Authority. Registered Office: Colmore Circus, Birmingham B4 6AR. Telephone: 0345 351 2352. Calls may be recorded to help us provide, monitor and improve our services to you.