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Written by Wesleyan

Vicarious liability: What dentists need to know

dentists
5 min read
Female dentist in a mask with a patient

What do you need to be aware of as a practice owner/principal dentist?

Practice owners are increasingly becoming aware of the subject of non-delegable duty of care liability claims arising from the dental care provided by associate dentists. 

Due to the increasing pressures within the practice setting, patients may now see a variety of team members rather than a single dentist. As a result, patients will be more likely to take legal action against the practice rather than the individual team members such as the associates or dental hygienists/therapists who carried out work.

Understanding the Breakingbury vs Croad case

This recent court case has raised awareness around non-delegable duty of care liability and the risk posed to practices across the country.

The practice owner was found vicariously liable for the clinical treatment carried out by a self-employed member of the practice.

In short, the argument was that the practice owner owed a non-delegable duty of care to the patients of the practice. The court carried out several tests to determine who is ultimately responsible by looking at employment status of the associates,  the connection between patient, practice and the dentist who carried out the treatment.

The practice itself operated in a similar way to many others – with treatment for patients being contracted out to various associates of self-employed status within the practice. 

An important point about this case that other practice owners need to take note of is that although in the majority of cases contracts exist between the practice owner and the associate outlining who is responsible for acts of negligence/errors in treatment, many contractual arrangements are not robust enough to cover every eventuality. 

Here, it is worth seeking out legal advice to ensure this issue is addressed.

Cover through defence organisations

Another important point to cover is that many associates and principals may have indemnity cover through defence organisations like the Dental Defence Union (DDU), Medical and Dental Defence Union of Scotland (MDDUS) and the Medical Protection Society (MPS) or have an insurance-backed policy through a broker. Irrespective of how claims are dealt with and the process differences, these indemnity policies offer protection against accusations and claims arising from the treatment provided to patients. 

The defendant was in a similar position to the above and had retired and sold the business. The defence organisation rejected the claim, and now the defendant is left with a huge financial challenge from legal bills, compensation costs and defending their reputation. 

This case will no doubt set precedent for many other cases. Legal representatives see this as a positive outcome for patients, and dentists may understandably be left worried about past cases and more aware of the risk posed to their own practices. 

Below we'll look at some common questions you may have about the implications of this and what it could mean for your practice. 

The elephant in the room – can you get retrospective cover?

The answer is unfortunately no. However, this really depends on the type of policy you have, who it is with and how long ago the incident occurred.

The best course of action here for peace of mind is to contact your provider and discuss this scenario and seek advice immediately.

How can you protect your business and yourself?

  • Do the due diligence – regularly review indemnity cover of associates/contracted professionals within the practice.
  • Review contracts with associates/contracted professionals – make it clear as to what happens when a claim is brought up against the practice.
  • Speak to your own indemnity provider – check their vicarious liability extends to errors and omissions of associates/contracted personnel (this area is often unclear and may require additional cover).
  • Consider having an overarching practice indemnity insurance – explain the risks and let indemnity providers offer solutions.

Should you review your indemnity cover?

Absolutely. In fact, you should regularly review any insurance policies/discretionary schemes you have in place to make sure they are fit for purpose as your circumstances change.

Insurers will provide peace of mind by telling you what you are covered for from the outset and, as they are regulated, you have someone to turn to if a claim is not fairly looked at.

The defence organisations will tell you that their indemnity cover on a discretionary basis is the perfect fit for you, and that their long-lasting heritage, and experience does provide reassurances. 

The important thing here is that both insurance and medical defence organisations (MDOs) offer protection which is the vital part of the debate. When it comes to what is better, it is really down to your risk appetite.

Whether indemnity is purchased on a discretionary basis through a defence union or you have contracted certain insurance policies, both should offer you sound advice by understanding what is important to you as a dentist. 

If you want cover which sets out the conditions of claims settlement at the offset, then in many cases insurance may be best. If you are confident that the MDOs (as experts in dentistry) will make the right decision, then discretionary may be best. It's wise to ask both providers the same questions, raise your concerns and worries and then make an informed decision.

Types of questions to ask both providers are:

  • I am concerned about financially being hit by a claim of negligence. How will you protect me? What scenarios are covered? You can use the Breakingbury vs Croad case as an example.
  • I am concerned about false accusations. How will you defend me and protect my professional reputation?
  • As a dentist I carry out other work like Botox, oral or maxillofacial surgeries etc. What cover can you provide?
  • If I have had a number of accusations/claims logged against me, how will this affect my cover?
  • If I disagree with outcomes of any claims settlement, what are my options?
  • I provide services to multiple practice patients, and processes and conditions differ, what actions am I responsible for and what actions are the practice owners responsible for?
  • I am looking to retire/leave the industry, how will I be protected against claims from my previous work?
  • I have bought a practice from another dentist, who is liable for past actions?

Where can you go for further guidance?

If you would like more information or are worried about the level of protection your business has, you can contact Wesleyan's commercial insurance team.

Note this blog post relates only to the courts in England & Wales, where Breakingbury v Croad is binding legal precedent. Other jurisdictions are not bound to follow this case’s precedent, but it may be quoted in similar cases.

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