A dentist will battle against a recent high court decision on vicarious liability and non-delegable duty of care.
It was ruled that Mr Raj Rattan – a Dental Protection member and its dental director – is liable to patient Mrs Hughes for the treatment carried out by an associate at his former practice.
He sold the practice six years ago and did not carry out any treatment.
The patient pursued a claim against Mr Rattan despite the identification of the treating dentists who are willing to respond to the claim.
Practice owner risk
However the client – who is represented by Dental Law Partnership (DLP) – did not engage with them, instead pursuing Mr Rattan as the former practice owner.
The claim surrounding vicarious liability focused on the relationship between Mr Rattan, as the practice owner at the time, and the self-employed treating dentists. This was to work out whether the court would consider it ‘akin to employment’.
Similarly the non-delegable duty of care claim focused on Mr Rattan’s relationship with the patient. It looked at whether he owed her a duty that could not be delegated.
Dental Protection argued the associates worked in and for their own business and also at their own risk as to profit or loss. As a result their relationship with Mr Rattan was not akin to employment.
The preliminary judgment stated that Mr Rattan’s conduct as a practice owner is not being criticised or questioned.
Nothing to gain
Equally, it ruled that he is vicariously liable for the self-employed associate dentists.
As a result he owed Mrs Hughes a non-delegable duty of care when she visited his dental practice for treatment.
Geoff Jones is executive direct of member protection and support at Dental Protection. He said: ‘We have supported Raj Rattan in fighting this case both for himself and for his fellow practice owners. Its potential impact cannot be understated and we will continue to support him in an appeal.
‘The self-employed dentists who were involved in the patient’s care were willing to respond to the claim. But DLP and their client refused to engage with them. Mrs Hughes had nothing to gain by refusing to engage with the treating dentists and pursuing Mr Rattan personally.
‘Sadly, there seems to be a growing trend in DLP pursuing claims like this against the practice owner rather than the self-employed dentists who provided the treatment and against whom negligence is alleged. It is disappointing as they cause real distress for the practice owner.
‘It poses a risk to the long-established arrangements that exist between practice owners and their associates.’
DLP statement
Chris Dean is managing director of The Dental Law Partnership, who represent Mrs Hughes.
He said: ‘To have secured this judgment in the English High Court is a victory for patients and for common sense. For too long dental practice owners and their member-only discretionary indemnity schemes, as peddled by Dental Protection Limited and others, have ducked responsibility for damages relating to shoddy treatment in their clinics.
‘Dental Practice owners, such as Dr Rattan, now have no hiding place from justice. We expect all dental practice owners to take out industry-standard insurance policies to cover their patients.
‘They should abandon the vagaries of 130 year old discretionary indemnity cover which is unfit for purpose in 2021.’
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To find out if you’re vulnerable to vicarious liability, Wesleyan has created a quiz that you can access at vicariousliability.scoreapp.com.
