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Court ruling suggests shift in vicarious liability
The threat of vicarious liability has hung over the dental profession for years, but a new ‘shocking’ court case has thrown the issue firmly into the spotlight.
Practice owners have long known of the possibility of being on the receiving end of litigation because of the actions of their team members.
However, many have felt protected from this threat, not least by the self-employed status of their associates. But a new court ruling has thrown that security into doubt and spread concern among the profession.
Practice owner liable for associates’ treatment
In the Breakingbury v Croad County Court judgement (19 April 2021), a dentist was found to be liable for treatment carried out by two associates at a practice that was, at the time, owned by him.
The claim against the practice owner came 20 years after he retired and seven years after he sold his practice.
Details of the case have been discussed on the BDA’s website where it was described as ‘shocking’ and said to represent ‘another shift to hold practice owners responsible for the care provided by their self-employed associates’.
Dentistry magazine reported that there was no evidence of indemnity cover for the dentists involved in delivering the treatment and that two of the three were no longer registered as dentists with the GDC or resident in the UK.
The practice owner in the case had to fund his defence and may also face further damages and costs from any civil claim that may follow this ruling.
Will your indemnity policy protect you from vicarious liability?
The short answer to this is, not necessarily. As the article on the BDA website has said, this case ‘highlights why some indemnity policies will not keep you safe from claims and damages’.
You might find that some policies specifically state that they will not cover you for claims arising from vicarious liability or any acts committed (or omitted) by others.
As always it is hugely important to do your due diligence and read through all the small-print of your policy to discover exactly what you are – and are not – covered for.
This ruling has shown once again the need to pay attention to the details of your policy and to make sure you have the right one for you.
Register here to use our free online tool and easily compare and contrast indemnity policies and providers.
What do the indemnity providers say about this case?
Indemnity providers have been commenting on the case within the dental media.
Geoff Jones, Executive Director, Member Protection and Support, at Dental Protection described the ruling as ‘disappointing’ and causing ‘unnecessary worry’ to practice owners.
He said, “The law requires that individual practitioners hold appropriate indemnity to ensure patients have access to compensation in the event of a successful claim. There is no legal requirement for practice owners to also hold indemnity for treatment carried out by other practitioners, the majority of whom work as independent contractors.”
He added, “If a practice owner needed to also hold indemnity for treatment carried out by other clinicians, they would in effect be paying ‘double indemnity’ and these higher costs could have a devastating impact on many practices and increase the cost of dental treatment for patients.’
John Makin, Head of the DDU, sought to reassure dentists that while rulings like this can be persuasive, they are not binding for other cases in the future.
He also said, “Over the past few years we have seen an increasing number of claims being made against practice owners about treatment carried out by associates. Where the practice principal facing such a claim is a member of ours, we are generally able to work with the indemnity provider of the treating associate to manage the claim to its conclusion.
“This case does, however, highlight the importance of practice owners ensuring their associates are appropriately indemnified and, if they leave the practice, keeping their contact details up to date.”
To read their full comments plus opinions from others in the industry, check out this article on GDPUK.
If in doubt – seek clarity from your provider
At I&I, we believe in openness, transparency and fairness within the dental indemnity market. That’s why we created this site, so that dentists can easily see what each indemnity policy provides and compare it with others.
It’s a legal requirement for dentists to have indemnity, but this case has once again highlighted the importance of knowing exactly what you’re covered for and for what period (claim-occurred vs claims-made).
If you’re looking for your next policy and want to see exactly what each provider is offering, register here for free and begin using our quick comparison tool.
This tool grows in accuracy the more people that register, so by getting involved now, you can help to make this process easier not just for yourself, but for your fellow dentists.
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