Vicarious liability – peace of mind

vicarious liability protection conceptYvonne Shaw, underwriting policy lead at Dental Protection, explains how it is offering practice principals peace of mind when it comes to protection against vicarious liability.

Setting up a dental practice is one of the most rewarding phases of a dentist’s professional career. As well as being your own boss, you get to create a positive working environment and a hub to provide care and treatment to the community.

Practice owners however face many challenges. Especially so during and in the aftermath of this pandemic.

It is therefore all the more disappointing that recent cases such as Breakingbury v Croad have created additional stress amongst practice owners who fear a claim of vicarious liability or non-delegable duty of care when they have no involvement in the clinical treatment of the patient.

We know that practice owners do not want exposure to this risk.

The good news is that practice principals who are Dental Protection members can now request assistance with vicarious liability and non-delegable duty of care claims.

There are various products on the market that refer to vicarious liability protection. It is important that practice owners read the small print. Check whether there are any limitations to what is provided and who is protected.

In this article we discuss some of the key considerations and offer reassurance on the comprehensive protection that Dental Protection membership includes above and beyond other products on the market.

What

Practice owners will want to ensure they have protection against vicarious liability claims. These focus on the relationship between the practice owner and the self-employed treating clinicians. And whether this could be considered by the Court to be ‘akin to employment’.

They will also want to know they have protection against claims relating to non-delegable duty of care. This focuses on the relationship between the practice owner and the patient. And whether the practice owner is under a personal duty to protect the patient from risk of injury. Even where you delegate the task to another. Particularly in the context of the GDS contract.

Dental Protection membership for current and new practice principal members, now includes additional protection against both vicarious liability and non-delegable duty of care claims relating to treatment provided by self-employed, contracted dental practitioners.

If such claims arise, you will want the reassurance that you have protection from the full range of associated costs.

The assistance Dental Protection can provide extends to include the cost of defending claims. As well as paying damages where the practice principal is found liable. And where these cannot be recovered from the treating associate clinicians.

Who

Practice owners will also want to consider who the protection relates to. And whether it includes all those who may have treated patients in your practice.

Practice principal members of Dental Protection can request assistance with regards to claims that relate not just to the actions of self-employed, contracted dental practitioners, but also to other contracted and employed clinicians including foundation dentists and dental care professionals.

Furthermore, these associates or dental care professionals do not need to be members of Dental Protection for you to be eligible. Although you should ensure that they have adequate indemnity arrangements in place.

If you own more than one practice, you will also want to ensure protection isn’t limited to just one practice.

Some other products on the market suggest charges will apply for any practice owner with more than one practice. At Dental Protection, we are automatically including this protection for practice principal members who own, or have owned, three or fewer practices at no additional cost.

For those who own, or have owned, four or more practices, you can apply for this additional protection. This may incur a supplementary charge. Please contact us to talk this through.

When

It is also worth checking whether you have protection against claims regardless of when the incident or treatment took place.

We know from our experience of claims handling that many dental claims include allegations about treatment provided more than 10 years ago.

Some providers only include limited periods of retrospective cover or may include none at all. At Dental Protection we have not set an arbitrary cut off period. We want to provide practice principal members with as much reassurance as possible. Therefore we include protection for all the time in membership as a practice principal.

Put simply, this means that a current practice principal member can request assistance if they receive a claim of vicarious liability or non-delegable duty of care relating to any period during their time as a practice principal member.

New practice principal members joining Dental Protection will continue to have protection from such claims throughout their time as a member.

For members returning to Dental Protection membership, this benefit will not only apply prospectively, but they will also become eligible to request assistance with a claim for any previous periods of membership with us when they were a practice principal.

Protecting you and the profession

A final consideration is to ensure that you are with an indemnity provider who will fight your corner if you face a vicarious liability claim. Or an argument that a patient is owed a non-delegable duty of care by the practice owner personally.

We know you want us to fight your corner. The introduction of the additional protection does not change our intention to do so.

At Dental Protection, we remain committed to challenging the principle of these often-unnecessary claims on behalf of members. This means that in the first instance we will look to redirect the claim to the treating clinicians.

We understand the importance of this for our members and for the wider profession.

Conclusion

We know that the subject of vicarious liability and non-delegable duty of care has and will continue to generate a great deal of debate and concern amongst practice owners.

But now more than ever it is important that the organisations you belong to work hard to provide you with reassurance that you are as protected as you can be.

Dental Protection exists solely to protect the careers, reputations and financial security of our members. We hope the additional layer of protection we are providing gives you the peace of mind you need.


Find further details on the extended benefits for practice principal members at: www.dentalprotection.org/uk/vicarious-liability.

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