Latest from the Dental Law Partnership;
In a victory for common sense and dental patients, the High Court today handed down a judgment in a test case that saw high profile dentist Dr Raj Rattan MBE, Dental Director of Dental Protection Limited, held vicariously liable and to owe a non-delegable duty of care to a patient treated in Dr Rattan’s surgery by associate dentists.
The judgment has major implications for victims of dental negligence who have been unable to make successful claims against the dentists who treated them, as well as for professional liability insurance cover in the dental profession. The patient’s dental negligence claim is being handled by specialist dental negligence solicitors, The Dental Law Partnership, and represented in the High Court by Ben Collins QC of Old Square Chambers.
The High Court judgment in Hughes v Rattan follows hard on the heels of a Cardiff County Court judgment in May 2021 which was decided the same way, and is especially significant because Dr Rattan leads Dental Protection Limited, the UK’s largest dental defence organisation, a members-only organisation controlling a mutual fund administering discretionary indemnity cover for thousands of UK dental practice owners.
For decades Dr Rattan’s organisation, Dental Protection Limited, a wholly owned subsidiary of The Medical Protection Society Limited, has fought to avoid liability of practice owners for dental claims against self-employed dentists operating within the dental practices of its members. This has led to hundreds of victims of dental negligence missing out on damages in dental negligence claims, as the individual dentists responsible for the poor treatment and the associated negligence claims could not be tracked down, did not have the right insurance cover or had left the country.
Before these recent judgments in the High Court and Cardiff CC, regardless of the name above the door many practice owners chose to avoid taking out contractual insurance themselves, but relied instead on individual dentists joining one of the Victorian era mutual societies which provide discretionary assistance.
In the event of negligence, often injured dental patients found that while the dental practice remained open, the negligent dentist no longer worked in the UK, or had disappeared, or that the individual dentist’s indemnity provider exercised their discretion not to cover the claim. Up until now, the discretionary indemnity providers, like Dental Protection, have simply washed their hands of the matter and refused to cover the practice owners.
Chris Dean, Managing Director of The Dental Law Partnership commented:
“To have secured this judgment in the English High Court is a victory for patients and for common sense. For too long dental practice owners and their member-only discretionary indemnity schemes, as peddled by Dental Protection Limited and others, have ducked responsibility for damages relating to shoddy treatment in their clinics. Dental Practice owners, such as Dr Rattan, now have no hiding place from justice. We expect all dental practice owners to take out industry-standard insurance policies to cover their patients, and to abandon the vagaries of 130 year old discretionary indemnity cover which is unfit for purpose in 2021.”
The recent judgments stem from the Court of Appeal extending the law relating to vicarious liability from 2013 onwards, and the decision of the Supreme Court in relation to the non-delegable duty of care in 2014. Following the Cardiff County Court case, the Hughes v Rattan decision in the High Court now establishes the legal precedent that the owner of an NHS dental practice is liable for the negligence of his or her associates.
“Today’s decision by the High Court reflects common sense, and will change the industry for the better,” Chris Dean said. “We’ve long been arguing that the current system fails patients. Too often NHS patients have suffered at the hands of negligent dentists but have been left unable to secure compensation to pay for corrective treatment, because the principals at the practice where the dentist worked were not considered liable. Until this judgment dental patients had more protection from slips and trips in the waiting area than when they were sat in the dentist’s chair.”
The decision of the High Court will encourage practice owners to be insured for vicarious liability claims, leading to widespread changes in how dental insurance is procured.
“We urge owners of dental practices to obtain the right level of contractual insurance to protect them from the risk of mistakes made by their associates. Practice owners having insurance against claims is crucial to help victims of dental negligence. Individual indemnity cover provided by the mutual societies is discretionary and can be withdrawn at any time. This makes a mockery of the whole system because it is usually the dentists who have caused the most egregious harm who have their cover withdrawn. At least going forward patients can be more confident their dental practice will have insurance if something goes wrong,” Dean concluded.
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