In a recent landmark judgement, a former dental practice owner was held vicariously liable for the negligent acts of their dental associates. The wider implications of this case have led to concerns among practice owners, who were previously under the impression that they would not be held responsible for the actions of associate dentists working at their practice as self-employed and independent contractors.

With vicarious liability now in the spotlight, many dental practice owners are asking how they can protect themselves against similar claims.

The judgement that raised the issue of vicarious liability in dentistry

The landmark judgement in the case, Breakingbury v Croad, was handed down on 19 April 2021. It confirmed that the former practice owner, Dr Croad, had a non-delegable duty of care to a registered patient and was vicariously liable for the errors of his associates.

The patient brought the claim in relation to allegedly negligent bridgework treatment performed by associate dentists when the practice was owned by Dr Croad. Two of three associates involved were no longer on the GDC register, having left the UK, and there was no evidence of indemnity for any of them.

The judgement means that Dr Croad will become liable, several years after he sold the practice, for costs and damages awarded if any subsequent civil claim by the patient is successful. For the patient, it provides a route to claim compensation to pay for corrective treatment even though the individual treating dentists have left the country.

The judge noted that the defendant may seek indemnity and contribution from the associates involved. Yet it seems unlikely that would be possible in this particular case. Any claim by a dental practice owner against an associate will only be successful if the associate is contactable and has assets or insurance.

When does vicarious liability apply?

Vicarious liability is established to mean that an employer can be held responsible for the negligent acts and omissions of an employee. However, what is considered an employer-employee relationship has shifted over time. Each court is free to decide whether a particular working relationship is ‘akin to employment’.

In this case, the verdict of vicarious liability rested on the level of control of the practice owner in the relationship with the associate dentists, even though they were not employees.

Dr Croad, as practice owner and principal dentist, held the NHS contract and was judged to be the ‘provider’ of NHS dental care with an obligation to ensure safe standards of care for its patients. The practice owner also set targets for the work of the dental associates, which was performed on behalf of, and for the benefit of, the practice. This level of control over the associates’ work was regarded as ‘akin to employment’.

What does the judgement mean for other dental practice owners?

The judgement does not automatically set a precedent but if you are a dental practice owner, it would be wise to:

• Understand vicarious liability and how it applies to you and your dental associates.
• Know who is ultimately responsible for the dental treatment your patients receive. If you are the holder of the NHS contract for your practice, you are responsible for ensuring that treatment related to that contract is delivered in a satisfactory manner and you may be held responsible if a patient complains about treatment.
• Ensure that your indemnity insurance covers vicarious liability for associates’ actions.

The British Association of Private Dentistry recently hosted a Q&A webinar session in which six indemnity providers discussed how vicarious liability affects practice owners and associates. The take home message was that vicarious liability cover is essential for principals and corporates. The providers also stressed the importance of a clear contract between associates and practice owners.

How dental practice owners can protect themselves

Practice owners are rightfully concerned about the risk of being held vicariously liable for their associates’ errors, as a result of this judgement. However, you can take a number of steps to mitigate that risk, as explained by James Goldman, writing for the BDA:

• Carefully check associates’ references before hiring.
• Have a robust written contract that will help to support a claim against the associate if there is a problem.
• Confirm that associates have adequate indemnity and keep copies of certificates. Occurrence-based contractual cover is considered the gold standard.
• Conduct regular clinical audits to ensure good patient service and identify potential issues with associates’ work.
• Keep up-to-date contact details for associates and former associates.
• Deal with complaints quickly and efficiently, with the support of your indemnity provider. Do not let problems escalate.
• Take advice from your defence organisation to deal with claims from patients treated by associates.

At Dental Defence Society we are always available to provide support in handling a vicarious liability claim. We can also help to protect you against future litigation.