A Different Type of Clawback
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- Published: Wednesday, 12 March 2025 09:44
- Written by Peter Ingle
- Hits: 1341
We owe the arrival of ‘clawback‘ in the dental lexicon to the 2006 UDA contract. Although those working outside the NHS might feel that this is something that will never darken their financial spreadsheets, a recent legal case could give them pause for thought.
Lexology, a platform which provides updates on key legal decisions has recently covered a UK High Court decision that provides a timely reminder to those practices taking payments by credit card. Unable to resist the pun the writers point out that the Consumer Credit Act 1974 (CCA) still has ’teeth’ when a credit card is used for the purchase of private dental care.
The particular case was bought by a patient against both the dentist who provided their treatment and the credit card company. The Court awarded substantial damages to the Claimant, after failed implant surgery. The Claimant also recovered against the credit card company. They were found to be jointly and severally liable for the damages, as the patient had used their credit card to pay for the treatment.
The treatment in question involved the removal of a problematic lower incisor bridge, followed by the provision of an implant supported restoration, allegedly performed negligently. A further allegation was that informed consent had not been achieved since the patient claimed that they were not advised of the risks and benefits of the treatment. The patient later attended a hospital dental department where it was established that the implant placement had damaged an adjacent tooth.
Surgical removal of the implant was required and this resulted in bone loss as well as the loss of the two adjacent teeth. Apart from the need for future treatment the claimant developed ischaemic colitis as a result of their NSAID consumption, and this had led to a dietary intolerance.
The patient issued proceedings against the dentist and their card provider, for liability under section 75 of the CCA. The Judge found for the Claimant against the dentist for negligence. This was not unexpected since the dentist did not call any expert evidence to respond to the Claimant’s expert evidence. In addition, the necessary contractual relationship was established to make the card company liable for any breach under section 75(1) of the CCA.
The Judge also confirmed that the card company was entitled to an indemnity and/or contribution from the dentist in respect of damages and costs. In the case of the damages, given the circumstances of the case that indemnity/contribution would be on a 100% basis. The Claimant was awarded £41,410 in general damages, and £87,663 in special damages.
In their discussion of the case, the authors from DAC Beachcroft LLP note that they rarely see credit card companies being sued alongside allegedly negligent doctors, dentists or clinics. When the indemnity of the alleged negligent party is not an issue, there may be no need.
However, this case is a reminder of another option for claimants to seek recovery of damages, particularly when the indemnity or solvency of the alleged negligent party is in doubt. Those considering the tactic of steering a potential claimant towards their credit card company to head off a potentially costly claim, should remember that those companies are likely to investigate matters, and they could still pursue the alleged negligent party for a contribution, as was awarded in this case.
Despite this, in some cases where a credit card was used to purchase treatment, it may be preferable for claimants to pursue the credit card company rather than become embroiled in vicarious liability / non-delegable duty of care arguments against healthcare corporates, which have no guarantee of success.
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