Dental Practices be prepared – Cases of Non-Delegable Duty are on the Rise.
The recent spate of legal claims by patients against dental practices, as opposed to individual dentists, heralds a change in approach by the law firms that typically represent disgruntled patients, seeking compensation.
The High Court handed down a judgement yesterday in the case of Hughes v Rattan. This case confirmed that a dental practice owed an independent, non-delegable duty of care to the patient, with whom they effectively agree to treat; even if that treatment is ultimately provided by a self-employed associate dentist.
The law regarding the “non-delegable” duty of a dental practice to a patient has not been altered by this judgement, or that in May of Breakingbury v Croad.
Non-delegable duty has the following characteristics:
- It arises from the existing or antecedent relationship between the dental practice and the patient.
- The duty is a positive duty to protect the patient against the risk of negligent dental treatment.
- The duty is personal to the dental practice.
In short, whilst it is possible to delegate (or subcontract) the work or dental treatment, the original duty of care to the patient will remain with the dental practice.
In finding that a non-delegable duty existed, it was not necessary to consider the issue of vicarious liability – however, the court did so in an attempt to provide some clarity on this issue.
Vicariously liability for the negligent acts of another person can arise where the relationship between, for example, the dental practice and the associate is “akin to employment”.
The judge commented:
“Whilst it is not necessary to establish the kind of irreducible minimum of mutual obligations found in an employment contract, I accept that this degree of freedom casts some light on the nature of the relationship and could, depending on the impact of the other features I will come on to discuss, be an indicator that the Associate Dentists were independent contractors, albeit it is not a decisive indicator of that….
In my judgment the most significant question for present purposes is whether the Associate Dentists were working as part of their own independent businesses or as an integral part of the Defendant’s business when they provided dental treatment at the Practice.”
In light of the level of integration of the associates into the dental practice, the Judge held that the practice was vicariously liable for the actions of the self-employed associates.
However, the ruling on vicarious liability will have little practical impact on dental practices in light of the existing obligations of non-delegable duty.
This is an important warning to dental practice owners to ensure that there are contracts in place with associates. Contracts must include carefully drafted indemnity clauses that allow the dental practice to counter claim against self-employed clinicians for any negligent acts.
Associates and Practice Owners should speak with their indemnity insurers to ensure that they have sufficient cover for claims of this nature.
Julia Furley is a barrister who specialises in dental law.
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