Here is an interesting case that CFC Underwriting sent across to us, which looks at the tricky issue of claims against the practice hygienist. Anyone who has ever gone through the hygienist treatment will wonder why the high speed tools used seem so abrasive and there is so much pushing and pulling of teeth. It’s no surprise that damage can be caused during this `cleaning process.’ In that case, someone needs to pay for the repair to expensive crowns, caps or bridge work.
In April, a judgment handed down at Cardiff County Court [Breakingbury vs Croad] found the owner of a dental practice responsible (vicariously liable) for compensating a patient for the negligent treatment carried out by a self-employed associate working at the practice. Vicarious liability in such cases rests largely on the relationship between the practice owner and the person deemed to have been negligent or remiss in fulfilling their duty of care.
If there is a clear employer/employee relationship in place, then there is no argument about the attaching liability. But matters become more opaque when the associate dentist, nurse or hygienist is self-employed.
Previously in these situations, the practice owner has not usually been vicariously liable for the actions of self-employed associates and co-workers. It has generally been held that the practice owner provided the premises, equipment and administrative support to self-employed individuals working there, whose own operations amounted to self-contained and separate entities.
But that distinction is coming under increasing scrutiny. Does the patient have a relationship with the individual self-employed dentist or the practice as a whole? For example, when they book an appointment, do they stipulate which dentist they want to see or accept the one offered?
And what about the relationship between the self-employed practitioner and the practice? While associate dentists, dental nurses and hygienists might be self-employed, what conditions do they have to adhere to when working in the practice? Do they work set hours? What control do they have over pricing? In short, can the business of the self-employed practitioner be deemed wholly independent of the practice?
The judgement in Breakingbury vs Croad suggests the relationship is more intertwined in the eyes of the law and is not the only judgment of its kind.
Another case in 2020 [Ramdhean v (1) Agedo and (2) The Forum Dental Practice Ltd], also found the dental practice was vicariously liable for a self-employed associate dentist’s negligent treatment.
The cases have attracted significant attention from claimant lawyers and the dental profession may well find itself facing a growing number of claims. Therefore, the onus is on practice owners to review their existing insurance cover and ensure it offers them the protection they need in the face of the evolving liability landscape.
The importance of having medical malpractice cover is highlighted by the fact the Care Quality Commission is increasingly asking practices to specify the insurance they have in place for the practice, over and above the individual policies held by the practitioners operating within the practice.
While the dental profession is currently in focus, the issue also applies to other healthcare practices offering everything from acupuncture and physiotherapy to chiropody and hypnotherapy.
Although everyone working within the practice might be self-employed and carry their own indemnity, the owner cannot rely on this fact to stop them being vicariously liable if a patient claims they have been treated negligently or without due care by another practitioner. It is a potential risk that owners can transfer effectively to the insurance market, but only if they take time to put the correct cover in place.
To find out more about vicarious liability, please reach out to CFC’s Medical Malpractice team firstname.lastname@example.org
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