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Published: Thursday, 04 August 2022 07:43

Written by Chris Tapper

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Dental Protection has shared guidance to help dental practice owners thwart vicarious liability and non-delegable duty of care claims.

UK dentistry was shaken in May 2021 when a retired dentist and practice owner was found to be liable for damages and costs after a County Court found he was vicariously liable for the negligent treatment of a claimant by a self-employed associate working in his practice before he sold it.

The BDA News website reported that Dr John Croad, who had been retired for more than two decades, had to defend his case out of his own pocket and faced potential costs estimated at £100K, including compensation to the patient.

A few months later, Dental Protection’s own Dental Director Dr Raj Rattan found himself caught up in similar circumstances when he was sued by a claimant who had received NHS treatment carried out by an associate at Dr Rattan’s  former practice.

Dental Protection said “Dr Rattan never treated the patient, and the treating dentists were willing to respond to the claim, but the claimant via their solicitors refused to engage with them and instead continued to pursue Dr Rattan under both vicarious liability and non-delegable duty of care.”

In February 2022, the Court of Appeal ruled that Dr Rattan was not vicariously liable for the actions of the associates concerned because of the freedoms they had in his practice.

But the Appeal Court judges agreed with the High Court that the claimant had been placed in Dr Rattan’s care as a patient of the practice and as such he had a positive non-delegable duty to protect her from harm caused by dental treatment.

A Dental Protection press release said “Non-delegable duty of care claims focus on the practice owner’s relationship with the patient. Where the practice owner is assumed to have a personal responsibility to the patient, the duty for the safety of that patient remains with the practice owner regardless of whether associates may have carried out their treatment.”

Dental Protection said that in the Hughes v Rattan case, “The judges took into consideration the claimant’s own perception that she was a patient of the practice rather than the individual dentists who treated her.”

“The personal dental treatment plan form used in England and Wales (FP17DC) was significant in relation to this point, as this named Dr Rattan as the dentist providing her treatment.  Furthermore, the claimant had not received any other documentation naming the individual dentists, and it was identified that patients were described as ‘patients of the practice’ under the associates’ agreement.”

Dental Protection has now set out a number of steps for practice owners to follow which “May help reinforce that a patient is under the care of the treating dentist, and reduce the risk of a successful claim relating to alleged non-delegable duty of care.”

The indemnity organisation suggests that practice owners should ensure that information provided to patients in practice leaflets and on practice websites, explains that associate dentists are self-employed, independent contractors and are personally responsible for the treatment they provide.

Dental Protection also suggests that practice owners in England and Wales ensure that the name of the treating dentist is added to FP17DC/FP17DCO forms – either handwritten alongside the performer number or added to the Oral Health Assessment box.

Dental Protection stresses that all correspondence with the patient – from the first appointment booking onwards – makes clear who the treating dentist is and that the patient will be a patient of that dentist for the duration of their treatment. The indemnity organisation also suggests ensuring the text confirmation of appointments states who the appointment is with, rather than just stating the practice name.

Dental Protection said that Dr Rattan was not considered vicariously liable for the actions of the associate dentists because of the particular freedoms they had in his practice but warned “However as the finding was specific to this case, the judgment does not set a precedent for all other vicarious liability claims.”

To reduce the risk of being held vicariously liable for the actions of associates, “Dental Protection has set out the following steps to try and limit consideration that the associate relationship with the practice owner is akin to employment, and reduce the risk of a successful vicarious liability claim.”

Dental Protection advises practice owners to check whether any clauses could suggest a relationship akin to employment.

“For example, if the following are stipulated in associates’ contracts, it is less likely to be considered akin to employment.”

1. Associates are responsible for their own tax/national insurance contributions
2. They can work for other practice owners or businesses if they wish
3. They do not receive sick pay or pension from the practice owner
4. They can choose which laboratory they use
5. They are responsible for their own clinical audits of their patients
6. They have complete clinical control over the dental treatment provided to their patient at each consultation, and are responsible for their own standard of work
7. They pay for their own clothing and non-standard equipment and materials

Dental Protection also advises practice owners to ensure that contracts contain the requirement that associates holds their own indemnity, and check this regularly to confirm it is adequate and appropriate. Also ensure you as practice owner have additional protection against vicarious liability and non-delegable duty of care claims bought against you relating to treatment provided by associates.  If your business is operated through a limited company, it is important to note that the company as an entity in its own right may need separate protection.

It is also recommended that associates should hold their own business cards, with no practice branding and practice owners retain up-to-date

contact information for all clinicians, including at the point an associate leaves, so that the associate can be contacted in the event a claim is brought against the practice relating to treatment an associate has provided.

Geoff Jones, Executive Director, Member Protection and Support at Dental Protection, said “Last year, Dental Protection extended its benefits for eligible practice principal members to include additional protection against claims relating to treatment provided by self-employed, contracted associates. Despite this reassurance however, we know experiencing a vicarious liability or non-delegable duty of care claim can still be distressing.”

“At the time of the Court of Appeal judgment we said we would consider the Court’s findings carefully and provide further guidance. We have now set out some practical steps to enable practice owners to reinforce that a patient is under the care of the treating dentist, and to limit consideration that the associate relationship is akin to employment.”

“To be clear, these steps will not stop certain dental negligence solicitors in their quest to bring vicarious liability and non-delegable duty of care claims against practice owners - even when the treating dentists have been identified and are willing to settle - but they may reduce the risk of such claims being successful. We will continue to do everything we can on this issue, on behalf of members and the wider profession.”

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