Who is responsible if an associate dentist is found to have harmed a patient through negligence? Received wisdom on this has always been that the self-employed associate is responsible for their actions, however recent developments in the case law surrounding vicarious liability now shows that this may not always be the case.
Vicarious liability and dentistry
Vicarious liability means that an employer can be held responsible for the negligent acts and omissions of an employee. In dentistry, the greater the level of control exerted by the practice owner and the more unequal the balance of power and freedom to make decisions, the more easily the argument can be made that vicarious liability exists.
"Recent court cases have set a new precedence on vicarious liability that dentists need to be aware of. "
Some recent court cases have set a new precedence on vicarious liability that dentists need to be aware of. A particularly important case was heard at a county court in October and December 2019. This involved a dental practice and the allegedly negligent care provided by an associate dentist.
The judgment related to whether:
- the practice owner owed to the patient a non-delegable duty of care in relation to the advice and treatment provided to the patient by the associate dentist, or whether
- the practice is to be held vicariously liable for any such proven negligence suffered by the patient at the hands of the associate.
The judge in this particular case concluded that the practice has a non-delegable duty of care and vicarious liability. This alarmed many practice owners, who have traditionally felt that they could not be held responsible for the work of a self-employed associate working in their practice.
Non-delegable duty explained
A non-delegable duty is an obligation that cannot be outsourced or delegated to another party by contract. This prevents one party from contracting out a duty of care that belongs to that party by law. The law exists so that when negligence occurs and someone is harmed as result of that negligence, that victim can be compensated.
"Non-delegable duty is more likely to exist where the claimant is a vulnerable person."
This non-delegable duty is more likely to exist where the claimant is a vulnerable person. For the purposes of the court judgment, the patient would be that vulnerable person who is in the care of the practice which then has a positive duty to protect that patient from harm. According to the above judgement, the practice has not delegated that care to the associate to look after the patient.
There has been a number of other cases recently that revolve around these two important issues, of vicarious liability and non-delegable duty, though none are specifically dental cases. They have been judged, in some cases in the Supreme Court, which therefore sets precedence for cases that may follow.
What does this mean for dentistry?
The picture has become clearer in that all the cases that come before the courts will be decided on their own particular merits, depending on the specific details of the working arrangements and environment in each case. More legal cases will be brought and other judgements will be made. A clearer picture of where dentists stand regarding vicarious liability will continue to come out of these cases that don’t necessarily involve the provision of healthcare services but establish legal principles.
We recommend that all dentists take steps to mitigate their risk of vicarious liability. I encourage members to read the advice we provide on the steps you can take, whether you’re an associate or a practice owner.
Head of Indemnity, BDA