Dental Practice Owner Has Duty of Care Liability

Interesting case judgement for you;

A recent Court of Appeal ruling has found that dental practice owner Dr Raj Rattan MBE, Dental Director of Dental Protection Limited, owed a non-delegable duty of care to a patient treated in his surgery by his associate dentists. Dr Rattan and his advisors decided not to appeal upwards to the Supreme Court, and the matter is now settled law in England and Wales.

The Court of Appeal decision marks a victory for common sense and has major implications for victims of dental negligence who have previously been unable to make successful claims, as well as for professional liability insurance cover in the dental profession. The new development could impact tens of thousands of dental cases in England every year.

This judgement concerns NHS dental practices and essentially attaches the same liability that applies to NHS hospitals to them. This case does not apply to exclusively private practices – although as the judgement highlights, surgeries treating both NHS and private patients have the same direct liability on the practice whoever treats the patients.

The patient’s dental negligence claim was handled by specialist dental negligence solicitors, The Dental Law Partnership, and the patient was represented in the High Court and then in the Court of Appeal by Ben Collins QC of Old Square Chambers.

The High Court judgement in Hughes v Rattan which was unsuccessfully appealed in the Court of Appeal by Dr Rattan, followed a Cardiff County Court judgement two months prior in May 2021 which was decided in the same way.

The defendant 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.

Chris Dean, Managing Director of The Dental Law Partnership commented: “The decision of the Court of Appeal 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 2022.”

The recent judgments stem from the decision of the Supreme Court in relation to the non-delegable duty of care in 2014. The Hughes v Rattan decision in the Court of Appeal now establishes the legal precedent that the owner of an NHS dental practice is liable for the negligence of his or her associates.

“The decision of the Court of Appeal, and the fact we now know it cannot be appealed, 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 and 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 will encourage practice owners to obtain insurance cover for the negligence of their dental associates, 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.

EXTRA COMMENT

Yvonne Shaw, Deputy Dental Director and Underwriting Policy Lead at Dental Protection said:

“Last year, Dental Protection extended its benefits for eligible practice principal members to include additional protection against claims relating to treatment provided by self-employed, contracted dental practitioners. This means eligible practice owners can request assistance with vicarious liability and non-delegable duty of care claims where they are named as the defendant.

“Despite this enhanced protection, Mr Rattan, supported by Dental Protection, decided to fight this case as a matter of principle. Mrs Hughes, represented by DLP, pursued a claim against Mr Rattan under both vicarious liability and non-delegable duty of care, despite the fact that the treating dentists had been identified and were willing to respond to the claim. DLP and their client refused to engage with them and instead pursued Mr Rattan as practice owner. Mrs Hughes had nothing to gain by refusing to engage with the treating dentists and pursuing Mr Rattan personally.

“DLP has persisted in pursuing a number of claims like this against the practice owner rather than the self-employed dentists who provided the treatment. In the majority of those cases, where a liability was established, the treating dentists are also willing to engage and the claimant could have received compensation much sooner. DLP refers to the Court of Appeal decision marking a ‘victory for common sense’, however this does not feel like a common sense approach for the many patients like Mrs Hughes who could have received compensation by now.

“DLP also refers to the Court of Appeal decision as ‘closing an unfair loophole’ that allowed indemnity providers to avoid paying compensation to injured patients. Such a loophole does not exist; in Mrs Hughes’ case and many others like it, the treating dentists have been identified and were willing to respond to the claim, however DLP and their client chose not to engage with them.

“While the Court of Appeal judges agreed with the High Court judge that Mrs Hughes had been placed in Mr Rattan’s care as a patient of the practice and as such he had a positive non delegable duty to protect her from harm caused by dental treatment, Mr Rattan was successful in appealing the vicarious liability judgment. While the decision was based on findings of fact specific to this case meaning the judgment does not set a precedent for all other vicarious liability claims, we hope it will benefit other practice owners in England and Wales in a similar position as Mr Rattan.

“DLP will still be able to pursue NHS practice owners in England and Wales, which is disappointing, but they are now more reliant on being able to prove the practice owner owed the patient a non-delegable duty of care.

“We are exploring what additional steps could be taken to help reduce the likelihood of a non-delegable duty of care claim being successful, and will provide a further update as soon as possible. In the meantime however, eligible Dental Protection practice principal members can rest assured that they can request assistance with vicarious liability and non-delegable duty of care claims where they are named as the defendant.”