Vicarious liability: a hidden trap for dental practice owners

As a dental practice owner, could you fall foul of vicarious liability?

Your dental Associates (and their liabilities) might be with you forever; as a dental practice owner, could you fall foul of vicarious liability?

Last month, a judgement on a preliminary point of law in the case of Breakingbury v Croad caused quite a stir among dental practice owners; here, we’ll explain why. 

Vicarious liability - a recent case study

Dr. Croad, a dentist with a practice in Wales, reduced his own dental practice and retired in 2000; eventually selling his practice in 2012.

During his retirement, two self employed associates treated a patient between 2008 and 2012. This patient bought a negligence claim against Dr. Croad, despite the fact he had been retired for eight years before the patient visited the practice. 

The only connection that Dr. Croad had was that he still owned the dental clinic. 

On 10/04/2021 a Court decided that Dr. Croad was responsible for any negligent treatment provided by the Associates at his practice.

The Court ruled that Dr. Croad had a non-delegable responsibility to the patient through the Associates. As a preliminary point of law, the patient’s negligence claim could proceed against Dr Croad. This recent ruling only opens up the possibility of a claim against Dr. Croad. The claim of negligence against the associates still needs to be proven.  

The Court said Dr. Croad can pursue the associates if the claim is proved. The important point is that the patient need look no further than Dr. Croad to pursue his own claim, and leave Dr. Croad to pursue his Associates.

One of our dental practice owners summed things up very well when he said, if the patient thinks I have done something wrong, they sue me. If they think one of the associates has done something wrong, they still sue me… The case brought against Dr. Croad shows that this persists for all of the time for which you are the owner of a practice whether or not retired.

A consideration for dental practice owners

Any practice owner, whether during their career or planning retirement and sale of the practice at some point will need to consider the following:

  • The notion that the associates were “self employed” was no defence to the claimant being able to sue the practice owner and leave them to recover from the Associates as best they can.
  • Dr Croad had not met or treated this claimant, but that was irrelevant.
  • Associates having their own indemnity is only part of the story.
  • Courts will not require the claimant to chase the treating professional, they will permit the claimant to sue the “nearest target”
  • Vicarious responsibility covers all your Associates. There is no requirement for the claimant to select one over another

Vicarious liability has always been the hidden trap for a practice owner, but it doesn’t have to be and, with appropriate insurance, you’ll be covered in an event like that detailed above. 

At HPPB, we have been advising clients of this risk and we only see its reach getting broader over time. 

Therefore, we provide practice level and individual insurance cover. We can also provide cover for a practitioner moving into retirement and upon the sale of a practice. 

To talk to us about dental practice insurance or anything mentioned above, please contact us. 

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