A new perspective on duty of care and liability?
29 June 2022
The question of liability is often a difficult one in dentistry. The complexities of non-delegable duty and vicarious liability create a difficult-to-navigate maze for the dental practitioner today. Indeed, it is becoming increasingly difficult to know for certain who a claim may be brought against with a patient complaint – the answer to which is usually only achievable by looking at situations on a case-by-case basis.
This was brought into the spotlight recently with the Hughes v Rattan Appeal (2022) gaining much attention across the profession. This appeal was based on two findings from the original hearing – the practice owner’s non-delegable duty of care to the patient and their vicarious liability.
The Court of Appeal maintained that NHS dental practices provide a dental service to their patients. It was argued in the original case that the patient was in the care of the practice owner because they signed the Personal Dental Treatment Plan in advance of any NHS treatment as part of the General Dental Services (GDS) contract. The appeal upheld this line of reasoning, confirming that the claimant was a patient of the practice from a legal perspective, and this was more than simply an administrative interaction. Hence, the practice owner was once again found to owe a non-delegable duty of care to the patient.
However, the appeal did reach a new conclusion on the matter of vicarious liability. The judge took into account aspects that the first instance judge did not, accepting that associate dentists act as independent contractors and therefore should be responsible for the care they provide to patients. The fact that associates can and do work in a number of practices for an many hours as they choose, further supports their independence from the practice owner. In this case, the appeal found that the specific facts did not lead to vicarious liability of the practice owner and therefore upturned the original judgement.
So, what can we learn from all this?
The findings in both areas are likely to be entirely dependent on the specifics of the case and as such, it is difficult to apply anything too broadly to other situations. A private practice without a GDS contract may be able to argue that providing completely private treatment means they do not meet the test for imposition of non-delegable duty. On the other hand, where associate contracts are more stringent than those used in this case example and require them to work a fixed number of hours in the one practice each week, vicarious liability may be with the practice owner.
For practice owners, being aware of these cases and the implications they have on your own situation is important. It is essential that their insurance policy covers them adequately, especially given that an associate’s insurance may be insufficient or that a claimant might bring a case purely against the practice owner in some circumstances.
Similarly, associate dentists should scrutinise both their contracts with the practice and their insurance policies to be confident in what they may or may not be liable for. Knowing that practice owners could still be entitled to indemnities, associates must appreciate that the details of their contracts will impact what they would and would not likely be covered for.
No matter which side of the fence you sit on, gaining complete confidence in the cover you take out is possible when you collaborate with a trusted provider. Howden is a specialist insurance broker that provides contractual cover for total certainty regarding what you are protected against. We offer highly competitive premiums and customisable policies to ensure that all your needs are met, no matter your circumstances. A dedicated account handler and medico-legal helpline are also available to all our clients, for added support when you need it most.
The appeal of the Hughes v Rattan case has been very interesting, but this will not be the last we hear about it. Even as the case itself is put to bed, there will be far-reaching implications for others experiencing similar situations. It is likely that the intricacies of each individual case will be the determining factors in where non-delegable duty and vicarious liability fall, making it impossible to take a blanket approach. As always, having solid contracts and a premium defence team in place will be the best preparation and protection for anyone.