Vicarious liability – a view from the other side

We speak to David Corless-Smith from the Dental Law Partnership about the recent vicarious liability case with Dental Protection.

Can you give us a brief summary of the main points of the case and why the Dental Law Partnership decided to pursue it?

First of all, we wanted a legal precedent showing that practices are liable for the treatment that is provided at their practice.

Traditionally patients bring claims against the individual dentists. There are a lot of difficulties with doing that. So we wanted a High Court judgment that declared dental practices are legally liable for treatments provided in their name.

So, what are the advantages of bringing a claim against the practice rather than the individual dentists?

Back in the Victorian days the patient would consult a dentist who would provide the whole course of treatments for many years. The business model of the defence organisations was that they would indemnify the individual treating dentists.

Fast forward 100 years to today and the usual scenario is that a patient is treated by multiple dentists. Even within a single course of treatment. That creates problems.

First, not all the dentists may cooperate. They may be indemnified, and we are not able to locate them and, they could be spread across two or even three defence organisations.

What organisations will do is try to hide the liability of their individual members. So the claim becomes fragmented. It’s much easier for a patient to bring the whole claim against the practice. That’s why we brought the claim to show the practice is liable.

You’ll be aware that the case was firstly about the non-delegable duty of care, and secondly vicarious liability. In effect, the court held that the dental practice has the same liability to its patients as a hospital. And that’s right.

Dental practices have been asserting that they’re different to hospitals and that the treating dentists are actually providing the private treatments.

All a dental practice is a referral service, they say. That clearly doesn’t come close to the reality. The court dismissed this and accepted that dental practices had assumed a responsibility directly to the patient to provide a service. And that it doesn’t matter who actually carries out the treatment.

Therefore the practice retains the liability. That’s why it’s called a non-delegable duty because the duty and liability cannot be delegated to the actual performer.

The other legal rule that was dealt with was vicarious liability. That’s what all the talk has been about.

Because associates are self-employed, dental practices say they are self-employed. But associates are treating patients that belong to the practice.

We cannot sensibly assert that associates are running their own practice. Those are the two legal rules, they come together to make it quite clear that dental practices are liable for the treatments provided.

You decided to go after the practice in this instance, despite the associate coming forward. Why in particular did you go after the practice and not the treating dentist?

Well, first of all, at the time of making the claim to the practice, the whereabouts of the associate dentist was not known.

But you’re quite right, we pursued the practice in preference to the individual associates. It turns out that in this case, the individual associates are all indemnified by Dental Protection.

Often that is not the case, so it’s important to obtain a precedent ruling, showing that the practice is liable.

Do you feel it’s fair to start chasing practices retrospectively for vicarious liability?

You’re asking me whether it’s fair, whether a practice owner should be liable for treatment that is provided at his practice, to that, my answer is yes.

The practice is a business. That practice owner is making a profit, whether it is NHS dentistry or private industry. Like any other business, it is responsible for the quality of the service it provides.

So quite simply, yes, it is fair that the practice owner is responsible for the dental services provided.

Is it practical for a principal of a dental practice to go through all the work that their associates do?

No, that’s not what has to happen.

Because a practice is running as a business, the service that business provides, the practice is liable for that. It’s obvious that any business providing a service cannot stand over and observe the individual performance of the service. But we do not require that to attach liability.

You’ve been quite critical of discretionary indemnity; do you still feel that this has a place in dentistry?

I think the days of discretionary indemnity are over. Indemnity companies only use discretion in one direction. That is, to refuse indemnity cover or to withdraw it after it’s provided.

Patients and practice owners need the certainty of contractual indemnity cover. It’s long since had its day.

Now what will happen? What are the implications of this judgment for dental practitioners and practice owners?

Well, I don’t think that is going to affect day to day dental practice. This only affects how we bring claims when there’s bad dentistry and a patient finds themselves in the position of making a claim.

The claim is more likely now against the practice that was responsible for the treatments rather than the individual treating dentists. But practices will be indemnified. So it won’t really adversely impact on the practice of dentistry.

So the practices will have to get indemnified now?

Indeed, they are now. Each of the defence organisations are providing cover to dental practice owners in relation to treatment provided by their associates.

What will happen with dental corporates and even NHS dentistry?

Dental corporates are a unique position. The demographic of their associates is that they are young and mobile, they only work for a few years. A large proportion are foreign trained and will return to their home country. So it may be that when a claim is identified, the actual dentist treating the patients are long since gone.

I would imagine that most claims against dental corporates will be brought against the practice entity not the individual dentists.

A lot of dental practices are feeling the pressure of COVID and austerity over the last decade. This no win, no fee culture that is creeping into dentistry, do you feel that it is creating an impossible landscape to become an individual practice owner?

Are you sensibly asking whether a patient should not have redress if they have been provided with substandard dentistry?

I think it’s a given that they should be able to bring the claim. No win, no fee enables a patient to do that. Because the cost of bringing a claim is prohibitive and the defence organisations turned defending claims into an art form.

It’s only right that we balance the playing field. Patients should be able to bring the claim.

The blunt answer to your question of whether I think that no win, no fee is a bad thing and threatens dentists and dental practices; I don’t. Their patients ought to be able to bring a claim.

Of course, dentistry prides itself on being a profession. The hallmark of the profession is that it puts the interests of its patients first.

The very time when the patient needs the profession to put its interests first, when dentistry has gone wrong, is a time when putting the patients’ interests first, disappears. Patients need no win no fee solicitors in their corner.

What would you say to those people that do feel you’re just chasing the money and not actually trying to improve patient safety?

That is a pejorative jive that the defence organisations would throw at us.

What we’re doing is representing patients and enabling them to bring claims where the treatment they’ve been provided with is substandard. Who can argue against that?

Dental Protection has promised to continue this this fight. What is the next step?

They say they are going to appeal the decision and that’s their right. So, they now need to request permission from the Court of Appeal to appeal the decision.

Is there anything that you want to add?

I must say, I don’t fully understand the shock horror of the profession.

Dentistry is the only sector in which when a service is provided that is of poor standard, the business entity that provides that service is not sued.

If you have poor treatment in hospital, you would sue the hospital. You wouldn’t dream of suing the individual practitioners.

So, why on Earth is it any different when a dental patient gets an injury at a dental practice?

Read more about the vicarious liability case here.

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