June 3, 2021
A recent legal case has sparked great controversy in the dental community. But what exactly happened?A retired dental practice owner living in Wales received a claim stating him to be liable for damages and costs that occurred over two decades after he retired. The claim was regarding dental treatment provided by two self-employed associated that worked at his practice before he sold it.Ineligible to be covered by his insurance policy due to various contributing factors, the retired dentist found himself having to cover the legal claims costs and may have to pay out additional costs in any civil claim by the patient that is related to the treatment provided by his two associates.The court case has highlighted for many dental owners, why some indemnity policies will not cover claims and damages under specific circumstances. As a result, many dental practice owners are now anxious that their policies don’t not cover them appropriately.This court case will more than likely change the insurance requirements dental practitioners have when renewing their policies or seeking policy extensions. All ready brokers across the UK are receiving calls from dental clients concerned about their policy coverage and the options available to them to better protect their practice from claims.Dental practice owners moving forward should, and already are, changing the way they think and approach dental indemnity insurance. In this article we will explore the court case, it’s impacts on insurance and the dental community.
A Look into the Court Case
The court case in question is the “Breakingbury V road Country Court Judgement (19 April 2021)”.Lynda Breakingbury filed a claim against dental practice owner Dr Croad for dental treatment she received from two associates carried out between the years 2008 and 2012 when the practice was still owned by the dentist Dr Croad (who retired from active dentistry work in 2000) until 2012. Lynda filed the claim 7 years after Dr Croad sold the practice, stating that Dr Croad was responsible for the negligent treatment his associates provided.So, why was this such a controversial court case for the dental community?Where the issues lie was in the judge’s decision regarding the case itself. The judge focused on the preliminary issues of if a “non-delegable duty of care” existed between the practice owner and the patient and/or vicarious liability for the acts and omission of the treating dentists, in delivering care to the patient, whom he had never seen, treated or even personally met. The situation shows another situation that forces the idea that practice owners should be held responsible for the care provided by self-employed associates within their practice.
What is a “non-delegable duty” of care?
A non-delegable duty is an ‘obligation that cannot be outsourced to another party or contract’. This stops the parties from contracting out of an obligation, or duty of care, where it belongs with the party by law.Therefore, in this situation, it was determining whether or not the dental duty, responsibility and consequence of performance cannot be pushing onto another party (the two dental associates) if the original party (the dental practice itself and therefore, the dental practice owner) is a competent independent contractor.Normally if it is fair to do so, vicarious liability insurance can be imposed on the party that has a non-delegable duty within certain circumstances, making them liable for the wrongful act even though they themselves do not commit the act personally.Due to the judgement made, the practice owner became liable for the damages and costs awarded by the court, as a result of a civil claim made against the practice by the patient. This will be awarded if the judgment made is no appealed and the substantive claim made successful.In the judgment, the judge used another similar dental court case to back up his own findings and decisions. Both dental cases reached the same conclusion, creating future uncertainty for dental practice owners moving forwards.The reoccurrence of this legal opinion, that dental practice owners should be responsible for all negligent work directly caused by independent dentists working within or in partnership with the practice, is a strong indication that the law could be moving in a specific direction when dealing with non-delegable care and vicarious liability cases within the healthcare sector.
How did the judge conclude the practice owner was responsible?
So why did the judge come to the conclusion that was a case of non-delegable duty?In this case the practice owner Dr Croad had a commercial contract with the NHS. This contract started the practice was to delivery activity (UDAs) and the practice had delegated that duty to the involved dental associates.This meant the practice would find patients and introduce them to the associates to carry out care if the associate accepted them, under the knowledge that the practice retained the goodwill.Therefore, the judge reached a conclusion that the practice has an obligation to ensure that the patients they recommended where being recommended safe dental services from the associates, and that the associated met all the expected standard set by the NHS commissioners under the contract.The UDA targets set and accepted by the associated were also controlled by the practice. The judge viewed this as an acceptable reason to not enforce vicarious liability. It was also concluded that even though the associates were responsible for their own tax affairs and indemnity arrangements, there was a non-delegable duty between the practice and the associates.The judge also started that there was nothing stopping Dr Croad from seeking indemnity from the associated, and that he would have had the responsibility to arrange that himself, and not his associates.
Moving forward for Dental Practice Owners
Unfortunately, when delivering services to patients in primary dental care, there is no single or simple solutions when legal challenges develop in a number of situations including:NHS contractual agreementsStandard business arrangementsPublic policyStatute and case lawIt is recommended that vicarious liability can help protect you from such situations where a form of employment occurred between a dental practice and another part/individual/practice under a contract. By setting up a line of insurance directly relating to forms of employment and partnership you can legally protect yourself from negligence carried out from those second- and third-party companies/individuals, and any claims that occur from their services.As Dr Croad did not investigate these indemnity avenues, he left himself greatly exposure, and ended up paying out for the claims costs personally, even though he was covered by a standard indemnity policy. Dental practice owners must understand that standard policies will not protect you from practice-based exposures, and that insurance policies should be adapted to fit around the work you are enforcing, even through another party that isn’t the practice itself, but involved in the practice.Ideally, the practice should have indemnity, as should employees and associates, and therefore where possible depending on your insurer there should be wording designed to protect you from such a situation. However, standard policies, depending on your insurer and broker, may not come automatically with this line of extra cover. There fore it is the responsibility of the dental practice / dental practice owner, to discuss with their broker, this type of insurance coverage.